Received 2/22/2019 1:57:09 PM Supreme Court Eastern District

Filed 2/22/2019 1:57:00 PM Supreme Court Eastern District 102 EM 2018 IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

Nos. 102 EM 2018 & 103 EM 2018

JERMONT COX and KEVIN MARINELLI,

Petitioners,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITIONERS' APPENDIX

Shawn Nolan, Esq, Timothy Kane, Esq. Stuart Lev, Esq. HELEN MARINO, First Assistant LEIGH SKIPPER, Federal Defender Federal Community Defender Office Suite 545 West, The Curtis Center 601 Walnut Street Philadelphia, PA 19106 215-928-0520

Counsel for Petitioners

February 22, 2019 Petitioners' Appendix Table of Contents

001-019 Exhibit A: Pennsylvania Capital Case Reversals - By Year of Sentence (chronological list of final judicial grants of relief)

020-038 Exhibit A: Pennsylvania Capital Case Reversals - By Name (alphabetical list of final judicial grants of relief)

039 Exhibit B: Pennsylvania Capital Case Reversals (Non -Final) (list of non -final judicial grants of relief)

040-094 William Bradford, An Enquiry: How Far the Punishment of Death Is Necessary in Pennsylvania (1793), published in 12 Am. J. Legal Hist. 122 (1968)

095-102 15 Statutes at Large of Pennsylvania 174 (1794)

103-125 James Wilson, Lectures on Law, in Collected Works of James Wilson, V ols. 1 & 2 (Kermit L. Hall & Mark David Hall, eds., 2007)

126-128 Jack D. Marietta & G.S. Rowe, Troubled Experiment: Crime and Justice in Pennsylvania, 1682-1800 (2006)

129-135 Negley K. Teeters, The Cradle of the Penitentiary; the Walnut Street Jail at Philadelphia (1955)

136-140 Negley K. Teeters, Public Executions in Pennsylvania, 1682-1834, 64(2) J. Lanc. Cty. Hist. Soc. (1960)

141-144 Nat'l Council Crime & Delinq., Clemency in Pennsylvania (1973)

145-171 Roberts Vaux, Notices of the Original, and Successive Efforts, to Improve the Discipline of the Prison at Philadelphia and to Reform the Criminal Code of Pennsylvania (Phila. 1826)

172-174 Rebecca M. McLennan, The Crisis of Imprisonment (2008)

175-181 10 Statutes at Large of Pennsylvania 70 (1780) Petitioners' Appendix Table of Contents (continued)

182-192 12 Statutes at Large of Pennsylvania 280 (1786)

193-202 Negley K. Teeters, They Were in Prison (1937)

203-215 Negley K. Teeters, Citizen Concern and Action Over 175 Years, 42(1) Prison J. (Apr. 1962)

216-237 Michael Vinson, The Society for Political Inquiries: The Limits of Republican Discourse in Philadelphia on the Eve of the Constitutional Convention, 113 Pa. Mag. Hist. & Biography 185 (1989)

238-240 2 Statutes at Large of Pennsylvania 77 (1700)

241-249 13 Statutes at Large of Pennsylvania 243 (1789)

250-267 13 Statutes at Large of Pennsylvania 511 (1790)

268-285 J. Ullner & G. Zajac, Supplemental Tables, Crosstabs of race of defendant and then race of victim, by death penalty outcomes

286-288 J. Ullner & G. Zajac, Supplemental Tables, Logistic regression for "sentence0" outcome

289-334 Supreme Court of Pennsylvania and Third Judicial Circuit of the U.S., Report of the Joint Task Force on Death Penalty Litigation in Pennsylvania (July 1990) Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Karabin, 521 Erroneous aggravating 1 Karabin, Nicholas 1979 1979 49 MD 1987 N Dauphin Pa. 543, 559 A.2d 19 (1989) circumstance Commonwealth v. Terry, 501 Pa. 2 Terry, Benjamin 1979 1979 State law evidentiary ruling 80-3-595 Y Montgomery 626, 462 A.2d 676 (1983) Frey v. Fulcomer, 132 F.3d 916 Mills v. Maryland, 486 U.S. 3 Frey, Roderick 1979 1980 5 N Lancaster (3d Cir. 1997) 367 (1988) Caldwell v. Mississippi, 472 Commonwealth v. Baker, 511 Pa. U.S. 320 (1985) and 4 Baker, Lawrence 1979 1981 5 62 ED 1983 N Philadelphia 1, 511 A.2d 777 (1986) improper prosecutorial argument Lesko v. Lehman, 925 F.2d 1527 Improper prosecutorial 5 Lesko, John 1980 1981 5 37 WD 1982 Y Westmoreland (3d Cir. 1991) argument Order, Commonwealth v. Moran, 6 Moran, Willard 1980 1981 C No. CP-51-CR-3091-1981 (Phila. IAC guilt phase 141 ED 1991 N Philadelphia C.P. Jan. 25, 1999) Commonwealth v. Smith, 502 Pa. IAC guilt phase (failure to 7 Smith, Donald 1980 1981 9 WD 1983 N Fayette 600, 467 A.2d 1120 (1983) impeach witness) Szuchon v. Lehman, 273 F.3d 299 Witherspoon v. Illinois, 391 8 Szuchon, Joseph 1981 1981 5 137 CAP N Erie (3d Cir. 2001) U.S. 510 (1968) Order, Travaglia v. Morgan, No. Erroneous aggravating 9 Travaglia, Michael 1980 1981 5 2:90-cv-1469 (W.D. Pa. Nov. 7, 42 CAP Y Westmoreland circumstance 1996) Commonwealth v. Wallace, 500 Brady v. Maryland, 373 20 & 50 WD 10 Wallace, William 1979 1981 Y Washington Pa. 270, 455 A.2d 1187 (1983) U.S. 83 (1963) 1982 Commonwealth v. Aulisio, 514 Pa. Erroneous aggravating 11 Aulisio, Joseph 1981 1982 5 105 ED 1984 N Lackawanna 84, 522 A.2d 1075 (1987) circumstance Commonwealth v. Clayton, 506 12 Clayton, Willie 1980 1982 State law evidentiary ruling 46 ED 1983 Y Philadelphia Pa. 24, 483 A.2d 1345 (1984) Cross v. Price, No. 95-cv-614, IAC penalty phase (failure 13 Cross, Charles 1981 1982 5 2005 WL 2106559 (W.D. Pa. Aug. to object to erroneous 179 CAP N Beaver 30, 2005) instruction) Commonwealth v. Floyd, 506 Pa. Improper prosecutorial 14 Floyd, Calvin 1980 1982 91 ED 1982 N Philadelphia 85, 484 A.2d 365 (1984) argument Commonwealth v. Goins, 508 Pa. Erroneous aggravating 15 Goins, George 1981 1982 5 30 ED 1984 N Philadelphia 270, 495 A.2d 527 (1985) circumstance Commonwealth v. Green, 525 Pa. 16 Green, William 1982 1982 5 State law evidentiary ruling 41 ED 1987 N Philadelphia 424, 581 A.2d 544 (1990) Commonwealth v. Hall, 523 Pa. Improper prosecutorial 17 Hall, Donald 1981 1982 5 97 ED 1987 Y Philadelphia 75, 565 A.2d 144 (1989) argument

PA001 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Jones, 520 Pa. 18 Jones, Thomas 1982 1982 S IAC penalty phase 29 ED 1983 N Philadelphia 68, 550 A.2d 536 (1988) Confrontation clause violation, prosecutorial

misconduct , IAC guilt and Peterkin v. Horn, 176 F. Supp. 2d 19 Peterkin, Otis 1981 1982 C + S sentencing phase, 165 CAP N Philadelphia 342 (E.D. Pa. 2001) erroneous aggravating circumstance, and Mills v. Maryland Pursell v. Horn, 187 F. Supp. 2d IAC penalty phase and 20 Pursell, Alan 1981 1982 S 277 CAP N Erie 260 (W.D. Pa. Feb. 1, 2002) instructional error Order, Commonwealth v. Atkins v. Virginia, 536 U.S. 21 Whitney, Raymond 1981 1982 S Whitney, No. CP-51-CR-1114161- 333 CAP N Philadelphia 304 (2002) 1981 (Phila. C.P. Jan. 16, 2008)

Abu-Jamal v. Sec'y, Pa. Dept of 22 Abu-Jamal, Mumia 1981 1983 S Mills v. Maryland 119 CAP N Philadelphia Corr., 643 F.3d 370 (3d Cir. 2011)

Albrecht v. Beard, 636 F. Supp. 2d 23 Albrecht, Alfred 1980 1983 S IAC appellate counsel 138 CAP N Bucks 468 (E.D. Pa. July 14, 2009) Improper prosecutorial Commonwealth v. Bricker, 506 24 Bricker, Robert 1979 1983 C argument and IAC guilt 38 WD 1983 Y Allegheny Pa. 571, 487 A.2d 346 (1985) phase Buehl v. Vaughn, 166 F.3d 163 25 Buehl, Roger 1982 1983 S IAC penalty phase 63 CAP N Montgomery (3d Cir. 1999) Ake v. Oklahoma, 470 U.S. Christy v. Horn, 28 F. Supp. 2d 68 (1985), IAC sentencing 26 Christy, Lawrence 1980 1983 C + S 48 CAP N Cambria 307 (W.D. Pa. 1998) phase, and improper prosecutorial argument

Order, Commonwealth v. 27 D'Amato, Joseph 1981 1983 S D'Amato, No. CP-51-CR-1219941- Stipulated 332 CAP N Philadelphia 1981 (Phila. C.P. June 13, 2013)

IAC penalty phase (failure Commonwealth v. DeHart, 539 28 DeHart, Robert 1983 1983 S to object to erroneous 6 CAP N Huntingdon Pa. 5, 650 A.2d 38 (1994) verdict slip)

Commonwealth v. Frederick, 508 Erroneous aggravating 29 Frederick, Edward Lee 1982 1983 85 WD 1983 N McKean Pa. 527, 498 A.2d 1322 (1985) circumstance

PAOO2 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. Hughes, Roper v. Simmons, 543 U.S. 30 Hughes, Kevin 1979 1983 S No. CP-51-CR-116881-1980 (Phila. 313 CAP N Philadelphia 551 (2004) C.P. Mar. 21, 2005) IAC penalty phase (failure Commonwealth v. Morales, 549 31 Morales, Salvador 1982 1983 5 to object to prosecutorial 84 CAP N Philadelphia Pa. 400, 701 A.2d 516 (1997) misconduct) Commonwealth v. Pirela, 593 Pa. 32 Pirela, Simon 1981 1983 5 Atkins v. Virginia 448 CAP N Philadelphia 312, 929 A.2d 629 (2007) Commonwealth v. Sims, 513 Pa. Confrontation clause 33 Sims, Bobby 1980 1983 C 52 ED 1984 N Philadelphia 366, 521 A.2d 391 (1987) violation Commonwealth v. Wheeler, 518 34 Wheeler, Ronald 1982 1983 S State law evidentiary ruling 98 ED 1985 N Bucks Pa. 103, 541 A.2d 730 (1988) Commonwealth v. Yarris, No. CP- 35 Yarris, Nicholas 1981 1983 C 23-690-1982 (Del. C.P. Sept. 3, Innocence 232 CAP N Delaware 2003) IAC guilt phase (failure to Baker v. Horn, 383 F. Supp. 2d 36 Baker, Lee (Herbert) 1984 1984 C object to unconstitutional 189 & 190 CAP N Philadelphia 720 (E.D. Pa. 2005) jury instructions) Blystone v. Horn, 664 F.3d 397 37 Blystone, Scott 1983 1984 S IAC penalty phase 136 CAP N Fayette (3d Cir. 2011) Commonwealth v. Bryant, 515 Pa. 38 Bryant, James 1978 1984 State law evidentiary ruling 159 ED 1984 Y Philadelphia 473, 530 A.2d 83 (1987) IAC penalty phase (failure Carpenter v. Vaughn, 296 F.3d 39 Carpenter, James 1983 1984 S to object to instructional 178 CAP N York 138 (3d Cir. 2002) error) IAC guilt phase (failure to Commonwealth v. Chmiel, 536 40 Chmiel, David 1983 1984 C request corrupt source 111 ED 1991 Y Lackawanna Pa. 244, 639 A.2d 9 (1994) instruction) Order, Crawley v. Horn, No. 99-cv- 41 Crawley, DeWitt 1983 1984 S IAC penalty phase 66 & 447 CAP N Philadelphia 5919 (E.D. Pa. Feb. 17, 2015) Commonwealth v. Ferber, No. CP- 42 Ferber, Neil 1981 1984 C 51-CR-710481-1981 (Phila. C.P. Innocence N Philadelphia Mar. 7, 1986) Order, Commonwealth v. Griffin, 43 Griffin, Rodney 1983 1984 S No. CP-23-CR-1655-1984 (Del. C.P Stipulated 24 CAP N Delaware Dec. 16, 2003) Commonwealth v. Marshall, 523 Erroneous aggravating 44 Marshall, Jerome 1983 1984 S 155 ED 1985 Y Philadelphia Pa. 556, 568 A.2d 590 (1989) circumstance

PA003 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Marshall v. Wetzel, No. 03-cv- 45 Marshall, Jerome 1983 1984 S 3308, 2018 WL 5814633 (E.D. Pa. Stipulated 533 CAP N Philadelphia Nov. 6, 2018) Erroneous aggravating circumstance and IAC Commonwealth v. Nelson, 514 46 Nelson, John 1983 1984 S penalty phase (failure to 43 WD 1984 N Erie Pa. 262, 523 A.2d 728 (1987) object to erroneous aggravator) Commonwealth v. Strong, 563 Pa. 47 Strong, James 1983 1984 C Brady v. Maryland 250 CAP N Luzerne 455, 761 A.2d 1167 (2000) Commonwealth v. Terry, No. CP- 48 Terry, Benjamin 1979 1984 S 46-CR-1565-79 (Montgomery C.P. IAC penalty phase 179 ED 1984 N Montgomery Oct. 22, 1996) Commonwealth v. Edwards, No. 49 Edwards, George 1984 1985 S CP-35-CR-52919-1984 Stipulated 74 ED 1987 N Lackawanna (Lackawanna C.P. June 16, 1999) Commonwealth v. Gibbs, 520 Pa. Miranda v. Arizona, 384 50 Gibbs, Barry 1984 1985 C N Pike 151, 553 A.2d 409 (1989) U.S. 436 (1966)

IAC penalty phase, Commonwealth v. Jones, 583 Pa. erroneous aggravating 51 Jones, James 1980 1985 S 350 & 360 CAP N Philadelphia 130, 876 A.2d 380 (2005) circumstance, and denial of mental health evaluation

Lark v. Sec'y, Pa. Dept. of Corr., Batson v. Kentucky, 476 52 Lark, Robert 1978 1985 C 235 CAP N Philadelphia 566 F. App'x 161 (3d Cir. 2014) U.S. 79 (1986) Commonwealth v. Rolan, No. CP- 53 Rolan, Florencio 1983 1985 S 51-CR-2893-1994 (Phila. C.P. Feb. IAC penalty phase N Philadelphia 4, 1998) Commonwealth v. Santiago, 528 54 Santiago, Salvador 1985 1985 C Miranda v. Arizona 99 WD 1986 Y Allegheny Pa. 516, 599 A.2d 200 (1991) Smith v. Horn, 120 F.3d 400 (3d In re Winship, 397 U.S. 358 55 Smith, Clifford 1983 1985 S 23 CAP N Bucks Cir. 1997) (1970) Commonwealth v. Sneed, 587 Pa. 56 Sneed, Willie 1980 1985 S IAC penalty phase 366 CAP N Philadelphia 318, 899 A.2d 1067 (2006) Wallace v. Price, 243 F. App'x 710 Confrontation clause 57 Wallace, William 1979 1985 C 135 CAP N Washington (3d Cir. 2007) violation Commonwealth v. Williams, 597 IAC penalty phase and IAC 58 Williams, Kenneth 1983 1985 S 430 & 431 CAP N Lehigh Pa. 109, 950 A.2d 294 (2008) appellate counsel

PA004 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Williams, 514Juror 59 Williams, Raymond 1984 1985 S misconduct 43 WD 1985 N Butler Pa. 62, 522 A.2d 1058 (1987) Commonwealth v. Williams, 522Juror 60 Williams, Ronald 1984 1985 S misconduct 46 WD 1985 N Butler Pa. 287, 561 A.2d 714 (1989) Appel v. Horn, 250 F.3d 203 (3d IAC guilt phase (failure to 61 Appel, Martin 1986 1986 112 CAP N Northampton Cir. 2001) investigate competency) Commonwealth v. Bannerman, 62 Bannerman, Sam 1984 1986 C 525 Pa. 264, 579 A.2d 1295 State law instructional error 90 ED 1986 N Philadelphia (1990) Commonwealth v. Bryant, No. CP- 63 Bryant, Robert 1984 1986 5 02-CR-7686-1984 (Allegheny C.P. IAC penalty phase N Allegheny Mar. 24, 1998) Commonwealth v. Caldwell, 516 Erroneous aggravating 64 Caldwell, Christopher 1985 1986 5 35 WD 1986 N Allegheny Pa. 441, 532 A.2d 813 (1987) circumstance Hardcastle v. Horn, 332 F. App'x 65 Hardcastle, Donald 1982 1986 Batson v. Kentucky 100 CAP N Philadelphia 764 (3d Cir. 2009) Holland v. Horn, 519 F.3d 107 (3d Ake v. Oklahoma and IAC 66 Holland, William 1984 1986 5 153 CAP N Philadelphia Cir. 2008) appellate counsel Jermyn v. Horn, 266 F.3d 257 (3d 67 Jermyn, Frederick 1985 1986 5 IAC penalty phase 134 CAP N Cumberland Cir. 2001) Lambert v. Beard, 537 F. App'x 78 68 Lambert, James 1982 1986 Brady v. Maryland 427 CAP N Philadelphia (3d Cir. 2013) Commonwealth v. Murphy, 527 IAC guilt phase (failure to 69 Murphy, Craig 1981 1986 51 ED 1987 Y Philadelphia Pa. 309, 591 A.2d 278 (1991) cross-examine witness) Memorandum and Order, Commonwealth v. Proctor, No. CP 70 Proctor, Roger 1985 1986 5 Brady v. Maryland 218 CAP N Crawford 20-CR-759-1985 (Crawford C.P. Dec. 30, 2002) Order, Commonwealth v. Smith, 71 Smith, James 1979 1986 5 No. CP-51-CR-717891-1983 (Phila. IAC penalty phase 591 CAP N Philadelphia C.P. June 19, 2009) Commonwealth v. Smith, 523 Pa. 72 Smith, Jay 1979 1986 Brady v. Maryland 48 MD 1987 N Dauphin 577, 568 A.2d 600 (1989) Order, Commonwealth v. 73 Thomas, Brian 1985 1986 5 Thomas, No. 2:00-cv-803 (E.D. IAC penalty phase 552 CAP N Philadelphia Pa. Dec. 20, 2011) IAC penalty phase (failure Commonwealth v. Wharton, 530 74 Wharton, Robert 1984 1986 5 to object to erroneous 114 ED 1986 Y Philadelphia Pa. 127, 607 A.2d 710 (1992) instruction)

PA005 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Williams, 641 75 Williams, Terrance 1984 1986 Brady v. Maryland 560 CAP N Philadelphia Pa. 283, 168 A.3d 97 (2017) Commonwealth v. Zook, 520 Pa. 76 Zook, Robert Peter 1985 1986 C Miranda v. Arizona 37 ED 1987 N Lancaster 210, 553 A.2d 920 (1989) IAC penalty phase (failure Commonwealth v. Billa, 521 Pa. 77 Billa, Louis 1987 1987 to object to erroneous N Philadelphia 168, 555 A.2d 835 (1989) instruction)

Commonwealth v. Chambers, 528 Improper prosecutorial 78 Chambers, Karl 1986 1987 5 14 MD 1989 N York Pa. 558, 599 A.2d 630 (1991) argument

Henry v. Horn, 218 F. Supp. 2d 79 Henry, Josoph 1986 1987 5 Mills v. Maryland 140 CAP N Northampton 671 (E.D. Pa. 2002) IAC penalty phase (failure Holloway v. Horn, 161 F. Supp. 2d 80 Holloway, Arnold 1980 1987 5 to request mental health 191 CAP N Philadelphia 452 (E.D. Pa. 2001) expert) Order, Commonwealth v. Jones, IAC penalty phase and IAC 81 Jones, Damon 1982 1987 5 No. CP-51-CR-907121-1982 (Phila. 409 & 425 CAP N Philadelphia appellate counsel C.P. Aug. 3, 2007) Judge v. Beard, No. 02-cv-6798, 82 Judge, Roger 1984 1987 5 2012 WL 5960643 (E.D. Pa. Nov. IAC penalty phase 474 CAP N Philadelphia 29, 2012) Morris v. Beard, No. 01-cv-3070, Mills v. Maryland and IAC 83 Morris, Kelvin 1980 1987 5 2007 WL 1795689 (E.D. Pa. June 289 CAP N Philadelphia penalty phase 20, 2007) Rollins v. Horn, 386 F. App'x 267 84 Rollins, Saharris 1986 1987 IAC penalty phase 192 CAP N Philadelphia (3d Cir. 2010) Order, Commonwealth v. Tilley, 85 Tilley, William 1985 1987 5 No. CP-51-CR-1210781-1985 IAC penalty phase 9 ED 2000 N Philadelphia (Phila. C.P. Nov. 2, 2007) Breakiron v. Horn, No. 00-cv-300, 86 Breakiron, Mark 1987 1988 C 2008 WL 4412057 (W.D. Pa. Sept. Brady v. Maryland 323 CAP N Fayette 24, 2008) Commonwealth v. Bricker, 525 State law instructional error 87 Bricker, Robert 1979 1988 111 WD 1988 N Allegheny Pa. 362, 581 A.2d 147 (1990) and evidentiary ruling Commonwealth v. Brode, 523 Pa. 88 Brode, Richard 1986 1988 5 State law evidentiary ruling 48 MD 1988 N Lebanon 20, 564 A.2d 1254 (1989) Order, Commonwealth v. 89 Graham, Harrison 1987 1988 5 Graham, No. CP-51-CR-839481- Atkins v. Virginia 38 CAP N Philadelphia 1987 (Phila. C.P. Dec. 18, 2003)

PA006 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Jasper, 526 Pa. 90 Jasper, Alfred 1984 1988 Mills v. Maryland 65 ED 1988 Y Philadelphia 497, 587 A.2d 705 (1991) Commonwealth v. Lewis, 528 Pa. 91 Lewis, Reginald 1983 1988 State law instructional error 170 ED 1988 Y Philadelphia 440, 598 A.2d 975 (1991) Commonwealth v. Ly, No. CP-51- 92 Ly, Cam 1983 1988 5 CR-1125561-1986 (Phila. C.P. Dec. Stipulated 465 CAP N Philadelphia 12, 2013) Commonwealth v. Mayhue, 536 Erroneous aggravating 93 Mayhue, Frederick 1986 1988 5 28 CAP N Allegheny Pa. 271, 639 A.2d 421 (1994) circumstance Order, Commonwealth v. McNair, 94 McNair, Nathaniel 1987 1988 5 No. CP-51-CR-122459-1987 (Phila. IAC penalty phase 90 ED 1989 N Philadelphia C.P. Feb. 19, 2002) Commonwealth v. Moore, 500 Pa. IAC penalty phase and IAC 95 Moore, Tyrone 1982 1988 5 316 & 317 CAP N Luzerne 279, 860 A.2d 88 (2004) appellate counsel Rompilla v. Beard, 545 U.S. 374 96 Rompilla, Ronald 1988 1988 5 IAC penalty phase 152 CAP N Lehigh (2005) Order, Commonwealth v. Spence, 97 Spence, Morris 1986 1988 C No. CP-51-CR-933911-1996 (Phila. Batson v. Kentucky 70 ED 1990 N Philadelphia C.P. Mar. 22, 2004) Commonwealth v. Starr, 541 Pa. 98 Starr, Gary 1988 1988 C Right to self -representation 32 CAP N Allegheny 564, 664 A.2d 1326 (1995) Wilson v. Beard, 589 F.3d 651 (3d 99 Wilson, Zachary 1981 1988 Brady v. Maryland 230 CAP N Philadelphia Cir. 2009) Commonwealth v. Young, 524 Pa. 100 Young, Joseph 1986 1988 S Mills v. Maryland 107 ED 1988 Y Montgomery 373, 572 A.2d 1217 (1990) Commonwealth v. Basemore, No. 101 Basemore, William 1986 1989 C CP-51-CR-317611-1987 (Phila. Batson v. Kentucky 197 CAP N Philadelphia C.P. Dec. 19, 2001) Commonwealth v. Bryant, 531 Pa. 102 Bryant, James 1978 1989 State law evidentiary ruling 23 ED 1989 N Philadelphia 147, 611 A.2d 703 (1992) Chester v. Horn, No. 99-cv-411, Defense counsel conflict of 103 Chester, Frank 1987 1989 C 2011 WL 710470 (E.D. Pa. Feb. 339 CAP N Bucks interest and In re Winship 28, 2011) Order, Faulkner v. Horn, No. CP- IAC guilt phase and right to 104 Faulkner, Arthur 1988 1989 C 46-CR-3162-1988 (Montgomery 233 CAP N Montgomery present defense C.P. July 9, 2002) Commonwealth v. Fisher, 527 Pa. State law ruling on jury 105 Fisher, Robert 1980 1989 68 ED 1989 Y Montgomery 345, 591 A.2d 710 (1991) selection

PA007 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Gorby, 589 Pa. 106 Gorby, Thomas 1985 1989 IAC penalty phase 385 CAP N Washington 364, 909 A.2d 775 (2006) Commonwealth v. Green, 536 Pa. 107 Green, Samuel 1987 1989 Brady v. Maryland 103 ED 1991 N Northampton 599, 640 A.2d 1242 (1994) Order, Commonwealth v. 108 Howard, Melvin 1987 1989 5 Howard, No. CP-51-CR-304271- Stipulated 302 CAP N Philadelphia 1988 (Phila. C.P. Sept. 16, 2011) Laird v. Horn, 414 F.3d 419 (3d 109 Laird, Richard 1987 1989 In re Winship 194 CAP Y Bucks Cir. 2005) Commonwealth v. Mikell, 556 Pa. IAC guilt phase (failure to 110 Mikell, William 1987 1989 97 CAP N Philadelphia 509, 729 A.2d 566 (1999) request alibi instruction) Bench Order, Commonwealth v. 111 Wilson, Harold 1988 1989 C Wilson, No. CP-51-CR-3267 (Phila. Batson v. Kentucky 57 CAP N Philadelphia C.P. Jan. 17, 2003) State law evidentiary ruling Commonwealth v. Burgos, 530 112 Burgos, Jerry 1988 1990 C + 5 and erroneous aggravating 162 ED 1990 N Monroe Pa. 473, 610 A.2d 11 (1992) circumstance Order, Crews v. Horn, No. 3:98-cv- 113 Crews, Paul David 1990 1990 5 IAC penalty phase 393 CAP N Perry 1464 (M.D. Pa. Aug. 28, 2006) Commonwealth v. Crispell, 193 114 Crispell, Daniel 1989 1990 IAC penalty phase 722 CAP N Clearfield A.3d 919 (Pa. 2018) Commonwealth v. Grier, 536 Pa. 115 Grier, Eric 1989 1990 In re Winship 177 ED 1990 N Philadelphia 204, 638 A.2d 965 (1994) IAC penalty phase (failure Commonwealth v. Hall, 26 Phila. to raise Commonwealth's 577 ED ALLOC 116 Hall, Donald 1981 1990 5 Co. Rptr. 621, 1993 WL 1156097 N Philadelphia prior concession not to 1994 (Phila. C.P. July 23, 1993) seek death) Commonwealth v. Hawkins, 534 117 Hawkins, Thomas 1989 1990 State law evidentiary ruling 88 ED 1991 Y Montgomery Pa. 123, 626 A.2d 550 (1993) Commonwealth v. Huffman, 536 118 Huffman, Andrew 1989 1990 In re Winship 182 ED 1990 N Philadelphia Pa. 196, 638 A.2d 961 (1994) Memorandum, Marshall v. Beard, 119 Marshall, Jerry 1987 1990 5 No. 03-cv-795 (E.D. Pa. Apr. 25, Stipulated 216 CAP N Philadelphia 2007) Stipulation and Order, Meadows IAC penalty phase (failure 120 Meadows, Thomas 1984 1990 5 v. Beard, No. 05-cv-566 (E.D. Pa. to object to victim impact 689 CAP N Montgomery Sept. 8, 2016) evidence) Commonwealth v. Pelzer, 628 Pa. 631, 632, 633 & 121 Pelzer, Kevin 1988 1990 IAC penalty phase N Philadelphia 193, 104 A.3d 267 (2014) 634 CAP

PA008 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v.

122 Peoples, Al 1987 1990 S Peoples, No. CP-51-CR-1044981- Stipulated 482 & 483 CAP N Philadelphia 1989 (Phila. C.P. June 24, 2011) Commonwealth v. Curry, 537 Pa. IAC guilt phase (failure to 123 Perry, Curry 1987 1990 7 CAP N Philadelphia 385, 644 A.2d 705 (1994) investigate) Order, Commonwealth v. 124 Williams, Craig 1987 1990 5 Williams, No. CP-51-CR-424041- Stipulated 514 CAP N Philadelphia 1987 (Phila. C.P. Nov. 29, 2006) Commonwealth v. Zook, 585 Pa. 125 Zook, Robert Peter 1985 1990 5 IAC penalty phase 293 CAP N Lancaster 11, 887 A.2d 1218 (2005) IAC penalty phase (failure Commonwealth v. Blount, 538 Pa. 126 Blount, John 1989 1991 5 to object to erroneous 8 CAP N Philadelphia 156, 647 A.2d 199 (1994) instruction) Commonwealth v. Bradley, 552 IAC guilt phase (erroneous 127 Bradley, Jerard 1990 1991 147 CAP N Lycoming Pa. 492, 715 A.2d 1121 (1998) plea advice) Commonwealth v. Fisher, 545 Pa. Improper admission of 128 Fisher, Robert 1980 1991 5 48 ED 1982 Y Montgomery 233, 681 A.2d 130 (1996) victim impact evidence Kindler v. Horn, 642 F.3d 398 (3d Mills v. Maryland and IAC 129 Kindler, Joseph 1982 1991 5 151 CAP N Philadelphia Cir. 2011) sentencing phase IAC penalty phase (failure Commonwealth v. LaCava, 542 130 LaCava, Michael 1990 1991 5 to object to prosecutorial 34 CAP N Philadelphia Pa. 160, 666 A.2d 221 (1995) misconduct) Order, Commonwealth v. Lee, No. 131 Lee, Percy 1986 1991 5 CP-51-CR-511562-1986 (Phila. Roper v. Simmons 386 CAP N Philadelphia C.P. Sept. 21, 2005) Commonwealth v. May, 540 Pa. Erroneous aggravating 132 May, Freeman 1982 1991 5 54 CAP Y Lebanon 237, 656 A.2d 1335 (1995) circumstance Stipulation and Order, Rivers v. 133 Rivers, Delores 1988 1991 5 Horn, No. 02-cv-1600 (E.D. Pa. IAC penalty phase 241 CAP N Philadelphia May 10, 2005) Commonwealth v. Smith, 544 Pa. 134 Smith, Brian 1991 1991 IAC penalty phase 11 CAP N Luzerne 219, 675 A.2d 1221 (1996) Commonwealth v. Williams, 539 Erroneous aggravating 135 Williams, Antoine 1989 1991 5 41 CAP N Berks Pa. 61, 650 A.2d 420 (1994) circumstance Commonwealth v. Auker, 545 Pa. Erroneous aggravating 136 Auker, Robert 1989 1992 5 104 CAP N Northumberland 521, 681 A.2d 1305 (1996) circumstance Commonwealth v. Bracey, 632 137 Bracey, Edward 1991 1992 5 Atkins v. Virginia 240 CAP N Philadelphia Pa. 75, 117 A.3d 270 (2015)

PA009 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Brown v. Beard, No. 05-cv- 138 Brown, John 1990 1992 Stipulated 539 CAP N Philadelphia 4125 (E.D. Pa. June 27, 2018) Dennis v. Sec'y, Pa. Dept. of Corr., 139 Dennis, James 1991 1992 C 834 F.3d 263 (3d Cir. 2016) (en Brady v. Maryland 491 CAP N Philadelphia banc) Commonwealth v. Ford, 570 Pa. 140 Ford, Kenneth 1989 1992 S IAC penalty phase 248 CAP N Philadelphia 378, 809 A.2d 325 (2002) Order, Commonwealth v. McGill, 141 McGill, Bernard 1990 1992 S No. CP-51-CR-339201-1990 (Phila. IAC penalty phase 225 CAP N Philadelphia C.P. July 13, 2012) IAC penalty phase (failure Commonwealth v. McNeil, 545 142 McNeil, Christopher 1990 1992 S to object to victim impact 37 CAP N Philadelphia Pa. 42, 679 A.2d 1253 (1996) evidence) Commonwealth v. Miller, 597 Pa. 143 Miller, Joseph 1987,89 1992 S Atkins v. Virginia 540 CAP N Dauphin 333, 951 A.2d 322 (2008)

Order, Commonwealth v. 144 Thompson, Louis 1990 1992 S Thompson, No. CP-51-CR-436071- Stipulated 22 CAP N Philadelphia 1990 (Phila. C.P. May 21, 2004)

Commonwealth v. Bardo, 629 Pa. 145 Bardo, Michael 1992 1993 S IAC penalty phase 650 & 651 CAP N Luzerne 352, 105 A.3d 678 (2014) Commonwealth v. Bond, No. CP- 146 Bond, Aquil 1991 1993 S 51-CR-502971-2004 (Phila. C.P. IAC penalty phase 501 CAP N Philadelphia Mar. 13, 2017) Bond v. Beard, 539 F.3d 256 (3d 147 Bond, Jesse 1991 1993 S IAC penalty phase 212 CAP N Philadelphia Cir. 2008) Order, Commonwealth v. Hill, No. 148 Hill, Donetta 1990 1993 S CP-51-CR-518391-1991 (Phila. Stipulated 39 CAP N Philadelphia C.P. Dec. 5, 2005) IAC guilt phase (failure to Jacobs v. Horn, 395 F.3d 92 (3d 149 Jacobs, Daniel 1992 1993 C present diminished capacity 177 CAP N York Cir. 2005) defense) Commonwealth v. Paolello, 542 Erroneous aggravating 150 Paolello, Anthony 1992 1993 S 47 CAP N Erie Pa. 47, 665 A.2d 439 (1995) circumstance Order, Commonwealth v. Rainey,

151 Rainey, Michael 1989 1993 S No. CP-51-CR-419613-1990 (Phila. IAC penalty phase 468 & 469 CAP N Philadelphia C.P. Mar. 6, 2008)

PA010 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. 152 Santiago, Salvador 1985 1993 S Santiago, No. 04-cv-1669 (W.D. IAC penalty phase 180 CAP N Allegheny Pa. June 2, 2009) Simmons v. Beard, 590 F.3d 223 153 Simmons, Ernest 1992 1993 Brady v. Maryland 260 CAP N Cambria (3d Cir. 2009) Speight v. Beard, No. 04-cv-4110, 154 Speight, Melvin 1992 1993 S 2017 WL 914907 (E.D. Pa. Mar. 7, Stipulated 58 CAP N Philadelphia 2017) Order, Commonwealth v. Walker, 155 Walker, Shawn 1991 1993 S No. CP-51-CR-2770-1991 (Phila. IAC penalty phase 43 CAP N Philadelphia C.P. Apr. 21, 2004)

Bronshtein v. Horn, 404 F.3d 700 Simmons v. South Carolina, 156 Bronshtein, Antuan 1991 1994 S 284 CAP Y Philadelphia (3d Cir. 2005) 512 U.S. 154 (1994)

IAC penalty phase (failure Commonwealth v. Chambers, 570 157 Chambers, Karl 1986 1994 S to object to erroneous 299 CAP N York Pa. 3, 807 A.2d 872 (2002) instruction) Order, Commonwealth v. Clark, 158 Clark, Ronald 1993 1994 S No. CP-51-CR-1241151-1993 IAC penalty phase 92 CAP N Philadelphia (Phila. C.P. Aug. 25, 2006) Order, Commonwealth v. Cook, 159 Cook, Robert 1987 1994 S No. CP-51-CR-826512-1987 (Phila. IAC penalty phase 61 CAP N Philadelphia C.P. Mar. 13, 2003) Commonwealth v. Craver, No. CP- 160 Craver, Sherman 1993 1994 S 23-CR-1902-1993 (Del. C.P. June IAC penalty phase 98 CAP N Delaware 21, 2002) Commonwealth v. Elliott, No. CP- IAC penalty phase and IAC 161 Elliott, Joseph 1992 1994 S 51-CR-410911-1994 (Phila. C.P. 612 & 624 CAP N Philadelphia appellate counsel May 1, 2015) Order, Commonwealth v. Gribble, 162 Gribble, William 1992 1994 S No. CP-51-CR-1220811-1992 IAC penalty phase 336 & 356 CAP N Philadelphia (Phila. C.P. Mar. 8, 2007) Hall v. Beard, 55 F. Supp. 3d 618 163 Hall, Darrick 1993 1994 S IAC penalty phase 318 CAP N Chester (E.D. Pa. 2014) Commonwealth v. Jasper, 558 Pa. 164 Jasper, Alfred 1984 1994 S Caldwell v. Mississippi 114 CAP N Philadelphia 281, 737 A.2d 196 (1999) Order, Commonwealth v.

165 Johnson, William 1991 1994 S Johnson, No. CP-51-CR-936052- IAC penalty phase 701 CAP N Philadelphia 1991 (Phila. C.P. Dec. 12, 2005)

PA011 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Keaton, 615 418, 419 & 420 166 Keaton, Alexander 1992 1994 S IAC penalty phase N Philadelphia Pa. 675, 45 A.3d 1050 (2012) CAP Order, Commonwealth v. King, 167 King, Carolyn 1993 1994 S No. CP-38-CR-10898-1993 IAC penalty phase 614 CAP N Lebannon (Lebanon C.P. July 23, 2010) Order, Lewis v. Horn, No. 00-cv- 168 Lewis, Reginald 1983 1994 S Stipulated 164 CAP N Philadelphia 802 (E.D. Pa. July 25, 2011) Order, Commonwealth v. 169 Marrero, Jose 1994 1994 S Marrero, No. CP-25-CR-645-1994 Stipulated 397 CAP N Erie (Erie C.P. Jan. 8, 2009) Commonwealth v. Martin, 607 441, 442 & 443 170 Martin, Bradley 1993 1994 S IAC penalty phase N Lebanon Pa. 165, 5 A.3d 177 (2010) CAP Commonwealth v. Nieves, 560 Pa. IAC guilt phase (erroneous 171 Nieves, William 1992 1994 C 82 CAP N Philadelphia 529, 746 A.2d 1102 (2000) plea advice) Insufficient colloquy for Commonwealth v. O'Donnell, 559 172 O'Donnell, Kelly 1992 1994 S waiver of right to jury 71 CAP N Philadelphia Pa. 320, 740 A.2d 198 (1999) sentencing Commonwealth v. Reyes, 582 Pa. 173 Reyes, Angel 1993 1994 S IAC penalty phase 359 CAP Y Delaware 317, 870 A.2d 888 (2005) Order, Commonwealth v. Rucci, 174 Rucci, Dino 1989 1994 S No. CP-63-CR-2164-1990 (Wash. IAC penalty phase 68 CAP N Washington C.P. Apr. 13, 2006)

Saranchak v. Sec'y, Pa. Dept. of 175 Saranchak, Daniel 1993 1994 S IAC penalty phase 426 CAP N Schuylkill Corr., 802 F.3d 579 (3d Cir. 2015)

Washington v. Beard, No. 07-cv- 176 Washington, Anthony 1993 1994 C 3462, 2015 WL 234719 (E.D. Pa. Brady v. Maryland 347 CAP N Philadelphia Jan. 16, 2015) Abdul Salaam v. Sec'y, Pa. Dept. 177 Abdul Salaam, Seifullah 1994 1995 S of Corr., 895 F.3d 254 (3d Cir. IAC penalty phase 249 CAP N Cumberland 2018) Commonwealth v. Brown, 551 Pa. Improper prosecutorial 178 Brown, Kenneth 1993 1995 S 108 CAP Y Philadelphia 465, 711 A.2d 444 (1998) argument Order, Commonwealth v. Carson, 179 Carson, Samuel 1993 1995 S No. CP-51-CR-228371-1994 (Phila. IAC penalty phase 400 CAP N Philadelphia C.P. Apr. 1, 2008) Commonwealth v. Chandler, 554 180 Chandler, Kevin 1993 1995 S Simmons v. South Carolina 111 CAP N Philadelphia Pa. 401, 721 A.2d 1040 (1998)

PA012 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Chmiel, 558 Right to counsel and right 181 Chmiel, David 1983 1995 C 162 CAP Y Lackawanna Pa. 478, 738 A.2d 406 (1999) against self-incrimination Commonwealth v. Collins, 598 Pa. 182 Collins, Rodney 1992 1995 S IAC penalty phase 473 CAP N Philadelphia 397, 957 A.2d 237 (2008) Commonwealth v. Collins, 585 Pa. 183 Collins, Ronald 1992 1995 S IAC penalty phase 372 & 373 CAP N Philadelphia 45, 888 A.2d 564 (2005) Order, Commonwealth v. Gease, 184 Gease, Maurice 1994 1995 S No. CP-23-CR-902-1994 (Del. C.P. IAC penalty phase 116 CAP N Delaware Nov. 14, 2003) Order, Commonwealth v. Gibson, 378, 380 & 467 185 Gibson, Jerome 1994 1995 S No. CP-09-CR-5119-1994 (Bucks Atkins v. Virginia N Bucks CAP C.P. Nov. 24, 2004) Order, Commonwealth v. Harris, 186 Harris, Johnny Ray 1992 1995 S No. CP-51-CR-903421-1992 (Phila. IAC penalty phase 99 CAP N Philadelphia C.P. Sept. 12, 2002) Commonwealth v. May, 587 Pa. 187 May, Freeman 1982 1995 S IAC appellate counsel 415 CAP Y Lebanon 184, 898 A.2d 559 (2006) Commonwealth v. Smith, 606 Pa. 188 Smith, Wayne 1994 1995 S IAC penalty phase 436 CAP Y Delaware 127, 995 A.2d 1143 (2010) Order, Commonwealth v. 189 Thomas, Frederick 1993 1995 C Thomas, No. CP-51-CR-209891- Brady v. Maryland 132 CAP N Philadelphia 1994 (Phila. C.P. May 31, 2002) Commonwealth v. Thomas, No. 190 Thomas, LeRoy 1994 1995 S CP-51-CR-1207001-1994 (Phila. IAC penalty phase 314 CAP N Philadelphia C.P. Jan. 11, 2007) Order, Commonwealth v. Washington, No. CP-51-CR- 191 Washington, Vinson 1993 1995 S Stipulated 352 CAP N Phila. 310321-1994 (Phila. C.P. July 15, 2008) IAC guilt phase (failure to Commonwealth v. Williams, 636 192 Williams, Christopher 1989 1995 C call expert) and IAC 694 & 695 CAP N Philadelphia Pa. 105, 141 A.3d 440 (2016) appellate counsel Commonwealth v. Young, 561 Pa. Confrontation clause 193 Young, Richard 1979 1995 C 34, 748 A.2d 166 (2000) (on 120 CAP N Lackawanna violation reargument) Commonwealth v. Begley, 566 Pa. 194 Begley, James 1995 1996 S Mills v. Maryland 182 CAP N York 239, 780 A.2d 605 (2001) Commonwealth v. Bolden, 562 Erroneous aggravating 195 Bolden, Ralph 1994 1996 S 205 CAP N Allegheny Pa. 94, 753 A.2d 793 (2000) circumstance

PA013 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal?

Order, Commonwealth v. Brady v. Maryland, IAC

196 Counterman, Dennis 1988 1996 C + S Counterman, No. CP-39-CR-2500- guilt phase, and IAC penalty 184 CAP N Lehigh 1988 (Lehigh C.P. Aug. 27, 2001) phase

Order, Commonwealth v. Karenbauer, No. CP-37-CR-642- 197 Karenbauer, Peter 1995 1996 S Atkins v. Virginia 181 CAP N Lawrence 1995 (Lawrence C.P. Sept. 23, 2002)

Order, Commonwealth v. IAC guilt phase (failure to 198 Thompson, Andre 1992 1996 C Thompson, No. CP-51-CR-221931- 145 CAP N Philadelphia prepare alibi defense) 1993 (Phila. C.P. July 12, 2004)

Commonwealth v. Trivigno, 561 199 Trivigno, Philip 1995 1996 S Simmons v. South Carolina 228 CAP N Philadelphia Pa. 232, 750 A.2d 243 (2000) Commonwealth v. Wesley, 562 Erroneous aggravating 200 Wesley, Jake 1994 1996 S 221 CAP N Allegheny Pa. 7, 753 A.2d 204 (2000) circumstance Order, Commonwealth v. 201 Douglas, Robert 1980 1997 S Douglas, No. CP-51-CR-823261-IAC penalty phase 160 CAP N Philadelphia 1981 (Phila. C.P. Nov. 10, 2005) Fisher v. Beard, No. 03-cv-788, IAC penalty phase, In re

202 Fisher, Robert 1980 1997 C + S 2018 WL 3594990 (E.D. Pa. July Winship, and erroneous 451 CAP N Montgomery 25, 2018) aggravating circumstance Commonwealth v. Johnson, 174 203 Johnson, Roderick 1996 1997 C Brady v. Maryland 713 CAP N Berks A.3d 1050 (2017) IAC penalty phase (failure to challenge Miller v. Beard, 214 F. Supp. 3d 204 Miller, Dennis 1995 1997 S Commonwealth's expert) 204 CAP N Chester 304 (E.D. Pa. 2016) and insufficient waiver of penalty phase presentation Order, Commonwealth v. Rice, 205 Rice, Timothy 1996 1997 S No. CP-51-CR-906231-1996 (Phila. Stipulated 253 CAP N Philadelphia C.P. Jan. 27, 2012) Order, Commonwealth v. Thomaston, No. CP-51-CR- 206 Thomaston, Michael 1995 1997 S IAC penalty phase N Philadelphia 400541-1995 (Phila. C.P. Dec. 11, 2002) Commonwealth v. Weiss, No. CP-

207 Weiss, Ronald 1978 1997 S 32-CR-218-199 (Indiana C.P. Mar. IAC penalty phase 543 CAP N Indiana 19, 2012)

PA014 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Bridges v. Sec'y, Pa. Dept of 208 Bridges, Shawnfatee 1996 1998 C Corr., 706 F. App'x 75 (3d Cir. Brady v. Maryland 450 CAP N Berks 2017)

Order, Commonwealth v.

209 Freeman, Robert 1989 1998 S Freeman, No. CP-51-CR-1008861- IAC penalty phase 234 CAP N Philadelphia 1996 (Phila. C.P. May 29, 2009)

Order, Commonwealth v. Kemp,

210 Kemp, Matthew 1996 1998 S No. CP-51-CR-400091-1997 (Phila. IAC penalty phase 245 CAP N Philadelphia C.P. Oct. 24, 2005) Commonwealth v. Kimbell, 563Right 211 Kimbell, Thomas 1994 1998 C to present a defense 261 CAP N Lawrence Pa. 256, 759 A.2d 1273 (2000) Order, Commonwealth v. 212 Ockenhouse, John 1998 1998 5 Ockenhouse, No. CP-39-CR-1664- Stipulated 254 CAP N Lehigh 1998 (Lehigh C.P. Apr. 16, 2003) Commonwealth v. Overby, No. CP- 213 Overby, Lamont 1996 1998 5 51-CR-1006081-1996 (Phila. C.P. Stipulated 239 CAP N Philadelphia Oct. 18, 2013) Commonwealth v. Overby, 570 Bruton v. United States, 214 Overby, Michael 1990 1998 244 CAP N Philadelphia Pa. 328, 809 A.2d 295 (2002) 391 U.S. 123 (1968) Jury misapplied statutory Commonwealth v. Rizzuto, 566 215 Rizzuto, Paul 1994 1998 5 weighing law and 273 CAP N Philadelphia Pa. 40, 777 A.2d 1069 (2001) instructional error Commonwealth v. Scott, No. CP- 216 Scott, Nathan 1998 1998 5 46-CR-1739-1998 (Montgomery Atkins v. Virginia 266 CAP N Montgomery C.P. June 30, 2003)

Commonwealth v. Stallworth, Erroneous aggravating 217 Stallworth, Leroy 1998 1998 5 278 CAP N Lancaster 566 Pa. 349, 781 A.2d 110 (2001) circumstance

Commonwealth v. Boczkowski, Erroneous aggravating 218 Boczkowski, Timothy 1994 1999 5 285 CAP N Allegheny 577 Pa. 421, 846 A.2d 75 (2004) circumstance IAC guilt phase (failure to Commonwealth v. Champney, retain expert, investigate, 219 Champney, Ronald 1992 1999 574 & 575 CAP N Schuylkill 619 Pa. 627, 65 A.3d 386 (2013) and seek suppression of statement) Commonwealth v. Delesus, 500 Improper prosecutorial 220 DeJesus, Jose 1997 1999 5 286 CAP N Philadelphia Pa. 303, 860 A.2d 102 (2004) argument

PA015 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Delesus, No CP- 221 DeJesus, Jose III 1997 1999 S 51-CR-1103501-1997 (Phila. C.P. Stipulated 246 CAP N Philadelphia Jan. 8, 2018) Commonwealth v. Delesus, No CP- 222 DeJesus, Jose III 1997 1999 S 51-CR-1103501-1997 (Phila. C.P. Stipulated 246 CAP N Philadelphia Jan. 8, 2018) Commonwealth v. Dougherty, 93 223 Dougherty, Daniel 1985 1999 C IAC guilt phase 585 CAP N Philadelphia A.3d 520 (Pa. Super. Ct. 2013) Order, Commonwealth v. Fisher, 224 Fisher, Jonathan 1998 1999 S No. CP-46-CR-4631-1999 IAC penalty phase 298 CAP N Montgomery (Montgomery C.P. Aug. 6, 2004) Commonwealth v. Harvey, 571 Erroneous aggravating 225 Harvey, Derrick 1998 1999 S 267 CAP N Philadelphia Pa. 533, 812 A.2d 1190 (2002) circumstance Order, Commonwealth v. Hutchinson, No. CP-51-CR- 226 Hutchinson, Steven 1997 1999 S Stipulated 291 CAP N Philadelphia 408581-1998 (Phila. C.P. Oct. 25, 2006) Commonwealth v. Lloyd, 569 Pa. Erroneous aggravating 227 Lloyd, Marcus 1998 1999 S 312 CAP N Philadelphia 101, 800 A.2d 927 (2002) circumstance Bench Order, Commonwealth v. 228 Miller, Kenneth 1998 1999 S Miller, No. CP-51-CR-902382-No grounds specified 678 CAP N Philadelphia 1998 (Phila. C.P. May 13, 2014) Commonwealth v. Moore, No. CP- 229 Moore, Mikal 1998 1999 S 51-CR-701141-1998 (Phila. C.P. Stipulated 396 CAP N Philadelphia Mar. 27, 2017)

Commonwealth v. Sattazahn, 597 509, 510 & 511 230 Sattazahn, David 1987 1999 S IAC penalty phase N Berks Pa. 648, 952 A.2d 640 (2008) CAP

Commonwealth v. Boxley, 575 Pa. State law ruling on jury 231 Boxley, Richard 1997 2000 S 322 CAP Y Berks 611, 838 A.2d 608 (2003) selection Order, Commonwealth v. IAC guilt phase (failure to 232 Johnson, Raymond 1996 2000 C Johnson, No. CP-06-CR-3849- 529 CAP N Berks prepare alibi defense) 1999 (Berks C.P. Aug. 14, 2009) Commonwealth v. Malloy, 579 233 Malloy, Charles 1996 2000 S IAC penalty phase 311 CAP N York Pa. 425, 856 A.2d 767 (2004) Order, Commonwealth v.

234 McCrae, Steven 1998 2000 S McCrae, No. CP-51-CR-452-1999 Stipulated 337 CAP N Philadelphia (Phila. C.P. Apr. 13, 2006)

PA016 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. Ramos, 235 Ramos, Wilfredo 1998 2000 S No. CP-51-CR-100891-1999 (Phila. IAC penalty phase 307 CAP N Philadelphia C.P. Apr. 17, 2008) Commonwealth v. Tharp, 627 Pa. 236 Tharp, Michelle 1998 2000 S IAC penalty phase 637 CAP N Washington 673, 101 A.3d 736 (2014) Commonwealth v. Cousar, 638 237 Cousar, Bernard 1999 2001 S IAC penalty phase 704 CAP N Philadelphia Pa. 171, 154 A.2d 287 (2017) Commonwealth v. Cuevas, 574 Erroneous aggravating 238 Cuevas, Joseph 1999 2001 S 363 CAP N Monroe Pa. 409, 832 A.2d 388 (2003) circumstance Order, Commonwealth v. 239 Hanible, Ronald 1999 2001 S Hanible, No. CP-51-CR-409021- IAC penalty phase 346 CAP N Philadelphia 1999 (Phila. C.P. July 2, 2008) Commonwealth v. Brooks, 576 IAC guilt phase (failure to 240 Brooks, Billy 1990 2002 C 369 CAP Y Philadelphia Pa. 332, 839 A.2d 245 (2003) meet with defendant) Order, Commonwealth v. 241 Fletcher, Lester 2001 2002 S Fletcher, No. CP-51-CR-709931- IAC penalty phase 626 CAP N Philadelphia 2001 (Phila. C.P. Jan. 19, 2011)

Commonwealth v. Markman, 591 Bruton v. United States and 242 Markman, Beth 2000 2002 C 371 CAP N Cumberland Pa. 249, 916 A.2d 586 (2007) instructional error

Commonwealth v. Smith, 580 Pa. Improper prosecutorial 243 Smith, Lawrence 2000 2002 S 390 CAP N Philadelphia 392, 861 A.2d 892 (2004) argument Commonwealth v. Williams, 619 244 Williams, Connie 1999 2002 S Atkins v. Virginia 611 CAP N Allegheny Pa. 219, 61 A.3d 979 (2013)

Order, Commonwealth v. 245 Edwards, Mark 2002 2003 S Edwards, No. CP-26-CR-838-2002 Atkins v. Virginia 449 CAP N Fayette (Fayette C.P. Mar. 25, 2015)

Brady v. Maryland, prosecutorial misconduct, IAC guilt phase (failure to Order, Commonwealth v. impeach witnesses), 246 Sanchez, Ramon 2001 2003 C Sanchez, No. CP-39-CR-3652- 464 CAP N Lehigh improper admission of prior 2001 (Lehigh C.P. Nov. 16, 2010) bad acts, and false testimony of Commonwealth expert

Commonwealth v. Sepulveda, 636 247 Sepulveda, Manuel 2001 2003 S IAC penalty phase 712 CAP N Monroe Pa. 466, 144 A.3d 1270 (2016)

PA017 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Solano, 634 248 Solano, Raymond 2001 2003 S IAC penalty phase 686 & 687 CAP N Lehigh Pa. 218, 129 A.3d 1156 (2015) IAC penalty phase Commonwealth v. Cooper, 596 454, 455 & 462 249 Cooper, Willie 2002 2004 S (improper defense closing N Philadelphia Pa. 119, 941 A.2d 655 (2007) CAP argument) Order, Commonwealth v. Diggs, 250 Diggs, Junious 2002 2004 S No. CP-51-CR-709781-2002 (Phila. Stipulated 444 CAP N Philadelphia C.P. Aug. 14, 2012)

Order, Commonwealth v. Prosecutorial misconduct 251 Maisonet, Orlando 1982 2005 C Maisonet, No. CP-51-CR-1134831- 490 CAP N Philadelphia and IAC guilt phase 1990 (Phila. C.P. Feb. 13, 2019)

Order, Commonwealth v. Walter,

252 Walter, Shonda L 2003 2005 S No. CP-18-CR-179-2003 (Clinton IAC penalty phase 645 CAP N Clinton C.P. July 26, 2016) Order, Commonwealth v. Briggs, IAC penalty phase (failure 253 Briggs, Dustin 2004 2006 S No. CP-08-CR-348-2004 (Bradford to object to erroneous 537 CAP N Bradford C.P. Mar. 30, 2017) verdict slip) Opinion, Commonwealth v. 254 Galvin, Bryan 2006 2007 C Galvin, No. CP-06-CR-2572-2006 Juror misconduct 542 CAP N Berks (Berks C.P. Sept. 15, 2014) Agreement and Order, Commonwealth v. Johnson, No. 255 Johnson, Kareem 2002 2007 C IAC guilt phase 558 CAP N Philadelphia CP-51-CR-1300424-2006 (Phila. C.P. Apr. 22, 2015) Order, Commonwealth v. Reyes, IAC penalty phase (failure 256 Reyes, Angel 1993 2007 S No. CP-23-CR-1388-1993 (Del. to review entire file and 554 CAP N Delaware C.P. 2011) retaining conflicted expert) Commonwealth v. VanDivner, Atkins v. Virginia and IAC 257 VanDivner, James W 2004 2007 S 696 CAP N Fayette 178 A.3d 108 (2018) penalty phase Order, Commonwealth v. May, 258 May, Freeman 1982 2008 S No. CP-38-CR-71-1990 (Lebanon Stipulated 600 CAP N Lebanon C.P. July 2, 2014) Order, Commonwealth v. 259 Sanchez, Alfonso 2007 2008 C Sanchez, No. CP-09-CR-1136-Brady v. Maryland 605 CAP N Bucks 2008 (Bucks C.P. Jan. 26, 2017) Commonwealth v. Murray, 623 Erroneous aggravating 260 Murray, Harold 2005 2009 S 658 CAP N Montgomery Pa. 506, 83 A.3d 137 (2013) circumstance

PA018 Pennsylvania Capital Case Reversals - By Year of Sentence Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. 261 Ramtahal, David 2006 2009 Ramtahal, No. CP-09-CR-6389- IAC penalty phase 588 CAP N Bucks 2008 (Bucks C.P. Sept. 19, 2013) Commonwealth v. Spell, 611 Pa. Erroneous aggravating 262 Spell, Gaylord 2007 2009 5 592 CAP N Lawrence 584, 28 A.3d 1274 (2011) circumstance Commonwealth v. Knight, 638 Pa. Jury failed to find 263 Knight, Melvin 2010 2012 5 702 CAP Y Westmoreland 407, 156 A.3d 239 (2016) undisputed mitigator Bench Order, Commonwealth v. 264 White, Derrick 2010 2012 5 White, No. CP-51-CR-12991-2010 IAC penalty phase 78 EAL 2016 N Philadelphia (Phila. C.P. May 19, 2014)

PA019 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Abdul Salaam v. Sec'y, Pa. Dept. 1 Abdul Salaam, Seifullah 1994 1995S of Corr., 895 F.3d 254 (3d Cir. IAC penalty phase 249 CAP N Cumberland 2018)

Abu-lama' v. Sec'y, Pa. Dept of Mills v. Maryland, 486 U.S. 2 Abu-Jamal, Mumia 1981 1983 119 CAP N Philadelphia Corr., 643 F.3d 370 (3d Cir. 2011) 367 (1988)

Albrecht v. Beard, 636 F. Supp. 2d 3 Albrecht, Alfred 1980 1983 5 IAC appellate counsel 138 CAP N Bucks 468 (E.D. Pa. July 14, 2009) Appel v. Horn, 250 F.3d 203 (3d IAC guilt phase (failure to 4 Appel, Martin 1986 1986 112 CAP N Northampton Cir. 2001) investigate competency) Commonwealth v. Auker, 545 Pa. Erroneous aggravating 5 Auker, Robert 1989 1992 104 CAP N Northumberland 521, 681 A.2d 1305 (1996) circumstance Commonwealth v. Aulisio, 514 Pa. Erroneous aggravating 6 Aulisio, Joseph 1981 1982 105 ED 1984 N Lackawanna 84, 522 A.2d 1075 (1987) circumstance Caldwell v. Mississippi, 472 Commonwealth v. Baker, 511 Pa. U.S. 320 (1985) and 7 Baker, Lawrence 1979 1981 62 ED 1983 N Philadelphia 1, 511 A.2d 777 (1986) improper prosecutorial argument IAC guilt phase (failure to Baker v. Horn, 383 F. Supp. 2d 8 Baker, Lee (Herbert) 1984 1984 object to unconstitutional 189 & 190 CAP N Philadelphia 720 (E.D. Pa. 2005) jury instructions) Commonwealth v. Bannerman, 9 Bannerman, Sam 1984 1986 C 525 Pa. 264, 579 A.2d 1295 State law instructional error 90 ED 1986 N Philadelphia (1990) Commonwealth v. Bardo, 629 Pa. 10 Bardo, Michael 1992 1993 5 IAC penalty phase 650 & 651 CAP N Luzerne 352, 105 A.3d 678 (2014) Commonwealth v. Basemore, No. Batson v. Kentucky, 476 11 Basemore, William 1986 1989 C CP-51-CR-317611-1987 (Phila. 197 CAP N Philadelphia U.S. 79 (1986) C.P. Dec. 19, 2001) Commonwealth v. Begley, 566 Pa. 12 Begley, James 1995 1996 Mills v. Maryland 182 CAP N York 239, 780 A.2d 605 (2001) IAC penalty phase (failure Commonwealth v. Billa, 521 Pa. 13 Billa, Louis 1987 1987 to object to erroneous N Philadelphia 168, 555 A.2d 835 (1989) instruction) IAC penalty phase (failure Commonwealth v. Blount, 538 Pa. 14 Blount, John 1989 1991 5 to object to erroneous 8 CAP N Philadelphia 156, 647 A.2d 199 (1994) instruction) Blystone v. Horn, 664 F.3d 397 15 Blystone, Scott 1983 1984 5 IAC penalty phase 136 CAP N Fayette (3d Cir. 2011)

PAO2O Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Boczkowski, Erroneous aggravating 16 Boczkowski, Timothy 1994 1999 S 285 CAP N Allegheny 577 Pa. 421, 846 A.2d 75 (2004) circumstance Commonwealth v. Bolden, 562 Erroneous aggravating 17 Bolden, Ralph 1994 1996 S 205 CAP N Allegheny Pa. 94, 753 A.2d 793 (2000) circumstance Commonwealth v. Bond, No. CP-

18 Bond, Aquil 1991 1993 S 51-CR-502971-2004 (Phila. C.P. IAC penalty phase 501 CAP N Philadelphia Mar. 13, 2017) Bond v. Beard, 539 F.3d 256 (3d 19 Bond, Jesse 1991 1993 S IAC penalty phase 212 CAP N Philadelphia Cir. 2008) Commonwealth v. Boxley, 575 Pa. State law ruling on jury 20 Boxley, Richard 1997 2000 S 322 CAP Y Berks 611, 838 A.2d 608 (2003) selection Commonwealth v. Bracey, 632 Pa. Atkins v. Virginia, 536 U.S. 21 Bracey, Edward 1991 1992 S 240 CAP N Philadelphia 75, 117 A.3d 270 (2015) 304 (2002) Commonwealth v. Bradley, 552 IAC guilt phase (erroneous 22 Bradley, Jerard 1990 1991 C 147 CAP N Lycoming Pa. 492, 715 A.2d 1121 (1998) plea advice) Breakiron v. Horn, No. 00-cv-300, Brady v. Maryland, 373 23 Breakiron, Mark 1987 1988 C 2008 WL 4412057 (W.D. Pa. Sept. 323 CAP N Fayette U.S. 83 (1963) 24, 2008) Improper prosecutorial Commonwealth v. Bricker, 506 24 Bricker, Robert 1979 1983 C argument and IAC guilt 38 WD 1983 Y Allegheny Pa. 571, 487 A.2d 346 (1985) phase Commonwealth v. Bricker, 525 State law instructional error 25 Bricker, Robert 1979 1988 C 111 WD 1988 N Allegheny Pa. 362, 581 A.2d 147 (1990) and evidentiary ruling

Bridges v. Sec'y, Pa. Dept of Corr., 26 Bridges, Shawnfatee 1996 1998 C Brady v. Maryland 450 CAP N Berks 706 F. App'x 75 (3d Cir. 2017)

Order, Commonwealth v. Briggs, IAC penalty phase (failure 27 Briggs, Dustin 2004 2006S No. CP-08-CR-348-2004 (Bradford to object to erroneous 537 CAP N Bradford C.P. Mar. 30, 2017) verdict slip) Commonwealth v. Brode, 523 Pa. 28 Brode, Richard 1986 1988 S State law evidentiary ruling 48 MD 1988 N Lebanon 20, 564 A.2d 1254 (1989)

Bronshtein v. Horn, 404 F.3d 700 Simmons v. South Carolina, 29 Bronshtein, Antuan 1991 1994 S 284 CAP Y Philadelphia (3d Cir. 2005) 512 U.S. 154 (1994)

Commonwealth v. Brooks, 576 IAC guilt phase (failure to 30 Brooks, Billy 1990 2002 C 369 CAP Y Philadelphia Pa. 332, 839 A.2d 245 (2003) meet with defendant) Order, Brown v. Beard, No. 05-cv- 31 Brown, John 1990 1992 Stipulated 539 CAP N Philadelphia 4125 (E.D. Pa. June 27, 2018)

PAO21 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Brown, 551 Pa. Improper prosecutorial 32 Brown, Kenneth 1993 1995 S 108 CAP Y Philadelphia 465, 711 A.2d 444 (1998) argument Commonwealth v. Bryant, 515 Pa. 33 Bryant, James 1978 1984 State law evidentiary ruling 159 ED 1984 Y Philadelphia 473, 530 A.2d 83 (1987) Commonwealth v. Bryant, 531 Pa. 34 Bryant, James 1978 1989 State law evidentiary ruling 23 ED 1989 N Philadelphia 147, 611 A.2d 703 (1992) Commonwealth v. Bryant, No. CP- 35 Bryant, Robert 1984 1986 S 02-CR-7686-1984 (Allegheny C.P. IAC penalty phase N Allegheny Mar. 24, 1998) Buehl v. Vaughn, 166 F.3d 163 36 Buehl, Roger 1982 1983 S IAC penalty phase 63 CAP N Montgomery (3d Cir. 1999) State law evidentiary ruling Commonwealth v. Burgos, 530 37 Burgos, Jerry 1988 1990 C + S and erroneous aggravating 162 ED 1990 N Monroe Pa. 473, 610 A.2d 11 (1992) circumstance Commonwealth v. Caldwell, 516 Erroneous aggravating 38 Caldwell, Christopher 1985 1986 S 35 WD 1986 N Allegheny Pa. 441, 532 A.2d 813 (1987) circumstance IAC penalty phase (failure Carpenter v. Vaughn, 296 F.3d 39 Carpenter, James 1983 1984 S to object to instructional 178 CAP N York 138 (3d Cir. 2002) error) Order, Commonwealth v. Carson, 40 Carson, Samuel 1993 1995 S No. CP-51-CR-228371-1994 (Phila. IAC penalty phase 400 CAP N Philadelphia C.P. Apr. 1, 2008)

Commonwealth v. Chambers, 528 Improper prosecutorial 41 Chambers, Karl 1986 1987 S 14 MD 1989 N York Pa. 558, 599 A.2d 630 (1991) argument

IAC penalty phase (failure Commonwealth v. Chambers, 570 42 Chambers, Karl 1986 1994 S to object to erroneous 299 CAP N York Pa. 3, 807 A.2d 872 (2002) instruction) IAC guilt phase (failure to Commonwealth v. Champney, retain expert, investigate, 43 Champney, Ronald 1992 1999 C 574 & 575 CAP N Schuylkill 619 Pa. 627, 65 A.3d 386 (2013) and seek suppression of statement) Commonwealth v. Chandler, 554 44 Chandler, Kevin 1993 1995 S Simmons v. South Carolina 111 CAP N Philadelphia Pa. 401, 721 A.2d 1040 (1998) Chester v. Horn, No. 99-cv-411, Defense counsel conflict of 45 Chester, Frank 1987 1989 C 2011 WL 710470 (E.D. Pa. Feb. 28, interest and In re Winship, 339 CAP N Bucks 2011) 397 U.S. 358 (1970)

PA022 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? IAC guilt phase (failure to Commonwealth v. Chmiel, 536 46 Chmiel, David 1983 1984 C request corrupt source 111 ED 1991 Y Lackawanna Pa. 244, 639 A.2d 9 (1994) instruction) Commonwealth v. Chmiel, 558 Right to counsel and right 47 Chmiel, David 1983 1995 C 162 CAP Y Lackawanna Pa. 478, 738 A.2d 406 (1999) against self-incrimination Ake v. Oklahoma, 470 U.S. Christy v. Horn, 28 F. Supp. 2d 68 (1985), IAC sentencing 48 Christy, Lawrence 1980 1983 C + 5 48 CAP N Cambria 307 (W.D. Pa. 1998) phase, and improper prosecutorial argument Order, Commonwealth v. Clark, 49 Clark, Ronald 1993 1994 5 No. CP-51-CR-1241151-1993 IAC penalty phase 92 CAP N Philadelphia (Phila. C.P. Aug. 25, 2006) Commonwealth v. Clayton, 506 50 Clayton, Willie 1980 1982 C State law evidentiary ruling 46 ED 1983 Y Philadelphia Pa. 24, 483 A.2d 1345 (1984) Commonwealth v. Collins, 598 Pa. 51 Collins, Rodney 1992 1995 S IAC penalty phase 473 CAP N Philadelphia 397, 957 A.2d 237 (2008) Commonwealth v. Collins, 585 Pa. 52 Collins, Ronald 1992 1995 S IAC penalty phase 372 & 373 CAP N Philadelphia 45, 888 A.2d 564 (2005) Order, Commonwealth v. Cook, 53 Cook, Robert 1987 1994S No. CP-51-CR-826512-1987 (Phila. IAC penalty phase 61 CAP N Philadelphia C.P. Mar. 13, 2003) IAC penalty phase Commonwealth v. Cooper, 596 454, 455 & 462 54 Cooper, Willie 2002 2004 S (improper defense closing N Philadelphia Pa. 119, 941 A.2d 655 (2007) CAP argument) Order, Commonwealth v. Brady v. Maryland, IAC 55 Counterman, Dennis 1988 1996 C + 5 Counterman, No. CP-39-CR-2500- guilt phase, and IAC penalty 184 CAP N Lehigh 1988 (Lehigh C.P. Aug. 27, 2001) phase Commonwealth v. Cousar, 638 56 Cousar, Bernard 1999 2001 S IAC penalty phase 704 CAP N Philadelphia Pa. 171, 154 A.2d 287 (2017) Commonwealth v. Craver, No. CP-

57 Craver, Sherman 1993 1994 S 23-CR-1902-1993 (Del. C.P. June IAC penalty phase 98 CAP N Delaware 21, 2002) Order, Crawley v. Horn, No. 99-cv- 58 Crawley, DeWitt 1983 1984 S IAC penalty phase 66 & 447 CAP N Philadelphia 5919 (E.D. Pa. Feb. 17, 2015) Order, Crews v. Horn, No. 3:98-cv- 59 Crews, Paul David 1990 1990 S IAC penalty phase 393 CAP N Perry 1464 (M.D. Pa. Aug. 28, 2006) Commonwealth v. Crispell, 193 60 Crispell, Daniel 1989 1990 S IAC penalty phase 722 CAP N Clearfield A.3d 919 (Pa. 2018)

PA023 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Cross v. Price, No. 95-cv-614, IAC penalty phase (failure 61 Cross, Charles 1981 1982 S 2005 WL 2106559 (W.D. Pa. Aug. to object to erroneous 179 CAP N Beaver 30, 2005) instruction) Commonwealth v. Cuevas, 574 Erroneous aggravating 62 Cuevas, Joseph 1999 2001 S 363 CAP N Monroe Pa. 409, 832 A.2d 388 (2003) circumstance

Order, Commonwealth v. 63 D'Amato, Joseph 1981 1983 S D'Amato, No. CP-51-CR-1219941- Stipulated 332 CAP N Philadelphia 1981 (Phila. C.P. June 13, 2013)

IAC penalty phase (failure Commonwealth v. DeHart, 539 64 DeHart, Robert 1983 1983 S to object to erroneous 6 CAP N Huntingdon Pa. 5, 650 A.2d 38 (1994) verdict slip) Commonwealth v. De.Jesus, 500 Improper prosecutorial 65 DeJesus, Jose 1997 1999 S 286 CAP N Philadelphia Pa. 303, 860 A.2d 102 (2004) argument Commonwealth v. De.Jesus, No CP- 66 DeJesus, Jose III 1997 1999 S 51-CR-1103501-1997 (Phila. C.P. Stipulated 246 CAP N Philadelphia Jan. 8, 2018) Commonwealth v. De.Jesus, No CP- 67 DeJesus, Jose III 1997 1999 S 51-CR-1103501-1997 (Phila. C.P. Stipulated 246 CAP N Philadelphia Jan. 8, 2018) Dennis v. Sec'y, Pa. Dept. of Corr., 68 Dennis, James 1991 1992 C 834 F.3d 263 (3d Cir. 2016) (en Brady v. Maryland 491 CAP N Philadelphia banc) Order, Commonwealth v. Diggs, 69 Diggs, Junious 2002 2004 S No. CP-51-CR-709781-2002 (Phila. Stipulated 444 CAP N Philadelphia C.P. Aug. 14, 2012) Commonwealth v. Dougherty, 93 70 Dougherty, Daniel 1985 1999 C IAC guilt phase 585 CAP N Philadelphia A.3d 520 (Pa. Super. Ct. 2013) Order, Commonwealth v. 71 Douglas, Robert 1980 1997 S Douglas, No. CP-51-CR-823261- IAC penalty phase 160 CAP N Philadelphia 1981 (Phila. C.P. Nov. 10, 2005) Commonwealth v. Edwards, No. 72 Edwards, George 1984 1985 S CP-35-CR-52919-1984 Stipulated 74 ED 1987 N Lackawanna (Lackawanna C.P. June 16, 1999)

Order, Commonwealth v.

73 Edwards, Mark 2002 2003 S Edwards, No. CP-26-CR-838-2002 Atkins v. Virginia 449 CAP N Fayette (Fayette C.P. Mar. 25, 2015)

PA024 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Elliott, No. CP- IAC penalty phase and IAC 74 Elliott, Joseph 1992 1994 S 51-CR-410911-1994 (Phila. C.P. 612 & 624 CAP N Philadelphia appellate counsel May 1, 2015) Order, Faulkner v. Horn, No. CP- IAC guilt phase and right to 75 Faulkner, Arthur 1988 1989 C 46-CR-3162-1988 (Montgomery 233 CAP N Montgomery present defense C.P. July 9, 2002) Commonwealth v. Ferber, No. CP- 76 Ferber, Neil 1981 1984 C 51-CR-710481-1981 (Phila. C.P. Innocence N Philadelphia Mar. 7, 1986) Order, Commonwealth v. Fisher, 77 Fisher, Jonathan 1998 1999S No. CP-46-CR-4631-1999 IAC penalty phase 298 CAP N Montgomery (Montgomery C.P. Aug. 6, 2004) Commonwealth v. Fisher, 527 Pa. State law ruling on jury 78 Fisher, Robert 1980 1989 C 68 ED 1989 Y Montgomery 345, 591 A.2d 710 (1991) selection Commonwealth v. Fisher, 545 Pa. Improper admission of 79 Fisher, Robert 1980 1991 S 48 ED 1982 Y Montgomery 233, 681 A.2d 130 (1996) victim impact evidence Fisher v. Beard, No. 03-cv-788, IAC penalty phase, In re 80 Fisher, Robert 1980 1997 C + S 2018 WL 3594990 (E.D. Pa. July Winship, and erroneous 451 CAP N Montgomery 25, 2018) aggravating circumstance Order, Commonwealth v. 81 Fletcher, Lester 2001 2002S Fletcher, No. CP-51-CR-709931- IAC penalty phase 626 CAP N Philadelphia 2001 (Phila. C.P. Jan. 19, 2011) Commonwealth v. Floyd, 506 Pa. Improper prosecutorial 82 Floyd, Calvin 1980 1982 C 91 ED 1982 N Philadelphia 85, 484 A.2d 365 (1984) argument Commonwealth v. Ford, 570 Pa. 83 Ford, Kenneth 1989 1992 S IAC penalty phase 248 CAP N Philadelphia 378, 809 A.2d 325 (2002) Commonwealth v. Frederick, 508 Erroneous aggravating 84 Frederick, Edward Lee 1982 1983 S 85 WD 1983 N McKean Pa. 527, 498 A.2d 1322 (1985) circumstance

Order, Commonwealth v. 85 Freeman, Robert 1989 1998 S Freeman, No. CP-51-CR-1008861- IAC penalty phase 234 CAP N Philadelphia 1996 (Phila. C.P. May 29, 2009)

Frey v. Fulcomer, 132 F.3d 916 86 Frey, Roderick 1979 1980 S Mills v. Maryland N Lancaster (3d Cir. 1997) Opinion, Commonwealth v. 87 Galvin, Bryan 2006 2007 C Galvin, No. CP-06-CR-2572-2006 Juror misconduct 542 CAP N Berks (Berks C.P. Sept. 15, 2014)

PA025 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. Gease,

88 Gease, Maurice 1994 1995 S No. CP-23-CR-902-1994 (Del. C.P. IAC penalty phase 116 CAP N Delaware Nov. 14, 2003) Commonwealth v. Gibbs, 520 Pa. Miranda v. Arizona, 384 89 Gibbs, Barry 1984 1985 N Pike 151, 553 A.2d 409 (1989) U.S. 436 (1966) Order, Commonwealth v. Gibson, 378, 380 & 467 90 Gibson, Jerome 1994 1995 5 No. CP-09-CR-5119-1994 (Bucks Atkins v. Virginia N Bucks CAP C.P. Nov. 24, 2004) Commonwealth v. Goins, 508 Pa. Erroneous aggravating 91 Goins, George 1981 1982 5 30 ED 1984 N Philadelphia 270, 495 A.2d 527 (1985) circumstance Commonwealth v. Gorby, 589 Pa. 92 Gorby, Thomas 1985 1989 IAC penalty phase 385 CAP N Washington 364, 909 A.2d 775 (2006) Order, Commonwealth v. 93 Graham, Harrison 1987 1988 5 Graham, No. CP-51-CR-839481- Atkins v. Virginia 38 CAP N Philadelphia 1987 (Phila. C.P. Dec. 18, 2003) Commonwealth v. Green, 536 Pa. 94 Green, Samuel 1987 1989 Brady v. Maryland 103 ED 1991 N Northampton 599, 640 A.2d 1242 (1994) Commonwealth v. Green, 525 Pa. 95 Green, William 1982 1982 5 State law evidentiary ruling 41 ED 1987 N Philadelphia 424, 581 A.2d 544 (1990) Order, Commonwealth v. Gribble, 96 Gribble, William 1992 1994 5 No. CP-51-CR-1220811-1992 IAC penalty phase 336 & 356 CAP N Philadelphia (Phila. C.P. Mar. 8, 2007) Commonwealth v. Grier, 536 Pa. 97 Grier, Eric 1989 1990 In re Winship 177 ED 1990 N Philadelphia 204, 638 A.2d 965 (1994) Order, Commonwealth v. Griffin, 98 Griffin, Rodney 1983 1984 5 No. CP-23-CR-1655-1984 (Del. C.P Stipulated 24 CAP N Delaware Dec. 16, 2003) Hall v. Beard, 55 F. Supp. 3d 618 99 Hall, Darrick 1993 1994 IAC penalty phase 318 CAP N Chester (E.D. Pa. 2014) Commonwealth v. Hall, 523 Pa. Improper prosecutorial 100 Hall, Donald 1981 1982 5 97 ED 1987 Y Philadelphia 75, 565 A.2d 144 (1989) argument IAC penalty phase (failure Commonwealth v. Hall, 26 Phila. to raise Commonwealth's 577 ED ALLOC 101 Hall, Donald 1981 1990 5 Co. Rptr. 621, 1993 WL 1156097 N Philadelphia prior concession not to 1994 (Phila. C.P. July 23, 1993) seek death) Order, Commonwealth v. Hanible, 102 Hanible, Ronald 1999 2001 5 No. CP-51-CR-409021-1999 (Phila. IAC penalty phase 346 CAP N Philadelphia C.P. July 2, 2008)

PA026 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Hardcastle v. Horn, 332 F. App'x 103 Hardcastle, Donald 1982 1986 C Batson v. Kentucky 100 CAP N Philadelphia 764 (3d Cir. 2009) Order, Commonwealth v. Harris, 104 Harris, Johnny Ray 1992 1995S No. CP-51-CR-903421-1992 (Phila. IAC penalty phase 99 CAP N Philadelphia C.P. Sept. 12, 2002) Commonwealth v. Harvey, 571 Erroneous aggravating 105 Harvey, Derrick 1998 1999 S 267 CAP N Philadelphia Pa. 533, 812 A.2d 1190 (2002) circumstance Commonwealth v. Hawkins, 534 106 Hawkins, Thomas 1989 1990C State law evidentiary ruling 88 ED 1991 Y Montgomery Pa. 123, 626 A.2d 550 (1993) Henry v. Horn, 218 F. Supp. 2d 107 Henry, Josoph 1986 1987 Mills v. Maryland 140 CAP N Northampton 671 (E.D. Pa. 2002) Order, Commonwealth v. Hill, No. 108 Hill, Donetta 1990 1993S CP-51-CR-518391-1991 (Phila. Stipulated 39 CAP N Philadelphia C.P. Dec. 5, 2005) Holland v. Horn, 519 F.3d 107 (3d Ake v. Oklahoma and IAC 109 Holland, William 1984 1986 S 153 CAP N Philadelphia Cir. 2008) appellate counsel IAC penalty phase (failure Holloway v. Horn, 161 F. Supp. 2d 110 Holloway, Arnold 1980 1987 S to request mental health 191 CAP N Philadelphia 452 (E.D. Pa. 2001) expert) Order, Commonwealth v. 111 Howard, Melvin 1987 1989S Howard, No. CP-51-CR-304271- Stipulated 302 CAP N Philadelphia 1988 (Phila. C.P. Sept. 16, 2011) Commonwealth v. Huffman, 536 112 Huffman, Andrew 1989 1990 C In re Winship 182 ED 1990 N Philadelphia Pa. 196, 638 A.2d 961 (1994) Order, Commonwealth v. Hughes, Roper v. Simmons, 543 U.S. 113 Hughes, Kevin 1979 1983 S No. CP-51-CR-116881-1980 (Phila. 313 CAP N Philadelphia 551 (2004) C.P. Mar. 21, 2005) Order, Commonwealth v. Hutchinson, No. CP-51-CR- 114 Hutchinson, Steven 1997 1999 S Stipulated 291 CAP N Philadelphia 408581-1998 (Phila. C.P. Oct. 25, 2006) IAC guilt phase (failure to Jacobs v. Horn, 395 F.3d 92 (3d 115 Jacobs, Daniel 1992 1993 C present diminished capacity 177 CAP N York Cir. 2005) defense) Commonwealth v. Jasper, 526 Pa. 116 Jasper, Alfred 1984 1988 S Mills v. Maryland 65 ED 1988 Y Philadelphia 497, 587 A.2d 705 (1991) Commonwealth v. Jasper, 558 Pa. 117 Jasper, Alfred 1984 1994 S Caldwell v. Mississippi 114 CAP N Philadelphia 281, 737 A.2d 196 (1999)

PA027 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Jermyn v. Horn, 266 F.3d 257 (3d 118 Jermyn, Frederick 1985 1986 IAC penalty phase 134 CAP N Cumberland Cir. 2001) Agreement and Order, Commonwealth v. Johnson, No. 119 Johnson, Kareem 2002 2007 IAC guilt phase 558 CAP N Philadelphia CP-51-CR-1300424-2006 (Phila. C.P. Apr. 22, 2015) Order, Commonwealth v. IAC guilt phase (failure to 120 Johnson, Raymond 1996 2000 C Johnson, No. CP-06-CR-3849- 529 CAP N Berks prepare alibi defense) 1999 (Berks C.P. Aug. 14, 2009) Commonwealth v. Johnson, 174 121 Johnson, Roderick 1996 1997 Brady v. Maryland 713 CAP N Berks A.3d 1050 (2017) Order, Commonwealth v. 122 Johnson, William 1991 1994 5 Johnson, No. CP-51-CR-936052- IAC penalty phase 701 CAP N Philadelphia 1991 (Phila. C.P. Dec. 12, 2005) Order, Commonwealth v. Jones, IAC penalty phase and IAC 123 Jones, Damon 1982 1987 5 No. CP-51-CR-907121-1982 (Phila. 409 & 425 CAP N Philadelphia appellate counsel C.P. Aug. 3, 2007)

IAC penalty phase, Commonwealth v. Jones, 583 Pa. erroneous aggravating 124 Jones, James 1980 1985 5 350 & 360 CAP N Philadelphia 130, 876 A.2d 380 (2005) circumstance, and denial of mental health evaluation

Commonwealth v. Jones, 520 Pa. 125 Jones, Thomas 1982 1982 IAC penalty phase 29 ED 1983 N Philadelphia 68, 550 A.2d 536 (1988) Judge v. Beard, No. 02-cv-6798, 126 Judge, Roger 1984 1987 5 2012 WL 5960643 (E.D. Pa. Nov. IAC penalty phase 474 CAP N Philadelphia 29, 2012) Commonwealth v. Karabin, 521 Erroneous aggravating 127 Karabin, Nicholas 1979 1979 5 49 MD 1987 N Dauphin Pa. 543, 559 A.2d 19 (1989) circumstance Order, Commonwealth v. Karenbauer, No. CP-37-CR-642- 128 Karenbauer, Peter 1995 1996 5 Atkins v. Virginia 181 CAP N Lawrence 1995 (Lawrence C.P. Sept. 23, 2002) Commonwealth v. Keaton, 615 418, 419 & 420 129 Keaton, Alexander 1992 1994 5 IAC penalty phase N Philadelphia Pa. 675, 45 A.3d 1050 (2012) CAP Order, Commonwealth v. Kemp, 130 Kemp, Matthew 1996 1998 5 No. CP-51-CR-400091-1997 (Phila. IAC penalty phase 245 CAP N Philadelphia C.P. Oct. 24, 2005)

PA028 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Kimbell, 563 131 Kimbell, Thomas 1994 1998 C Right to present a defense 261 CAP N Lawrence Pa. 256, 759 A.2d 1273 (2000) Kindler v. Horn, 642 F.3d 398 (3d Mills v. Maryland and IAC 132 Kindler, Joseph 1982 1991 S 151 CAP N Philadelphia Cir. 2011) sentencing phase Order, Commonwealth v. King, 133 King, Carolyn 1993 1994S No. CP-38-CR-10898-1993 IAC penalty phase 614 CAP N Lebannon (Lebanon C.P. July 23, 2010) Commonwealth v. Knight, 638 Pa. Jury failed to find 134 Knight, Melvin 2010 2012 S 702 CAP Y Westmoreland 407, 156 A.3d 239 (2016) undisputed mitigator IAC penalty phase (failure Commonwealth v. LaCava, 542 135 LaCava, Michael 1990 1991 S to object to prosecutorial 34 CAP N Philadelphia Pa. 160, 666 A.2d 221 (1995) misconduct) Laird v. Horn, 414 F.3d 419 (3d 136 Laird, Richard 1987 1989 C In re Winship 194 CAP Y Bucks Cir. 2005) Lambert v. Beard, 537 F. App'x 78 137 Lambert, James 1982 1986 S Brady v. Maryland 427 CAP N Philadelphia (3d Cir. 2013) Lark v. Sec'y, Pa. Dept. of Corr., 138 Lark, Robert 1978 1985 C Batson v. Kentucky 235 CAP N Philadelphia 566 F. App'x 161 (3d Cir. 2014) Order, Commonwealth v. Lee, No. 139 Lee, Percy 1986 1991S CP-51-CR-511562-1986 (Phila. Roper v. Simmons 386 CAP N Philadelphia C.P. Sept. 21, 2005) Lesko v. Lehman, 925 F.2d 1527 Improper prosecutorial 140 Lesko, John 1980 1981 S 37 WD 1982 Y Westmoreland (3d Cir. 1991) argument Commonwealth v. Lewis, 528 Pa. 141 Lewis, Reginald 1983 State law instructional error 170 ED 1988 Y Philadelphia 1988C 440, 598 A.2d 975 (1991) Order, Lewis v. Horn, No. 00-cv- 142 Lewis, Reginald 1983 1994 S Stipulated 164 CAP N Philadelphia 802 (E.D. Pa. July 25, 2011) Commonwealth v. Lloyd, 569 Pa. Erroneous aggravating 143 Lloyd, Marcus 1998 1999 S 312 CAP N Philadelphia 101, 800 A.2d 927 (2002) circumstance Commonwealth v. Ly, No. CP-51-

144 Ly, Cam 1983 1988 S CR-1125561-1986 (Phila. C.P. Dec. Stipulated 465 CAP N Philadelphia 12, 2013)

Order, Commonwealth v. Prosecutorial misconduct 145 Maisonet, Orlando 1982 2005 C Maisonet, No. CP-51-CR-1134831- 490 CAP N Philadelphia and IAC guilt phase 1990 (Phila. C.P. Feb. 13, 2019)

Commonwealth v. Malloy, 579 146 Malloy, Charles 1996 2000 S IAC penalty phase 311 CAP N York Pa. 425, 856 A.2d 767 (2004)

PA029 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Bruton v. United States, Commonwealth v. Markman, 591 147 Markman, Beth 2000 2002 C 391 U.S. 123 (1968) and 371 CAP N Cumberland Pa. 249, 916 A.2d 586 (2007) instructional error Order, Commonwealth v. 148 Marrero, Jose 1994 1994S Marrero, No. CP-25-CR-645-1994 Stipulated 397 CAP N Erie (Erie C.P. Jan. 8, 2009) Commonwealth v. Marshall, 523 Erroneous aggravating 149 Marshall, Jerome 1983 1984 S 155 ED 1985 Y Philadelphia Pa. 556, 568 A.2d 590 (1989) circumstance Marshall v. Wetzel, No. 03-cv-

150 Marshall, Jerome 1983 1984 S 3308, 2018 WL 5814633 (E.D. Pa. Stipulated 533 CAP N Philadelphia Nov. 6, 2018) Memorandum, Marshall v. Beard, 151 Marshall, Jerry 1987 1990S No. 03-cv-795 (E.D. Pa. Apr. 25, Stipulated 216 CAP N Philadelphia 2007) Commonwealth v. Martin, 607 441, 442 & 443 152 Martin, Bradley 1993 1994S IAC penalty phase N Lebanon Pa. 165, 5 A.3d 177 (2010) CAP Commonwealth v. May, 540 Pa. Erroneous aggravating 153 May, Freeman 1982 1991 S 54 CAP Y Lebanon 237, 656 A.2d 1335 (1995) circumstance Commonwealth v. May, 587 Pa. 154 May, Freeman 1982 1995 S IAC appellate counsel 415 CAP Y Lebanon 184, 898 A.2d 559 (2006) Order, Commonwealth v. May, 155 May, Freeman 1982 2008S No. CP-38-CR-71-1990 (Lebanon Stipulated 600 CAP N Lebanon C.P. July 2, 2014) Commonwealth v. Mayhue, 536 Erroneous aggravating 156 Mayhue, Frederick 1986 1988 S 28 CAP N Allegheny Pa. 271, 639 A.2d 421 (1994) circumstance Order, Commonwealth v. 157 McCrae, Steven 1998 2000S McCrae, No. CP-51-CR-452-1999 Stipulated 337 CAP N Philadelphia (Phila. C.P. Apr. 13, 2006) Order, Commonwealth v. McGill, 158 McGill, Bernard 1990 1992S No. CP-51-CR-339201-1990 (Phila. IAC penalty phase 225 CAP N Philadelphia C.P. July 13, 2012) Order, Commonwealth v. McNair, 159 McNair, Nathaniel 1987 1988S No. CP-51-CR-122459-1987 (Phila. IAC penalty phase 90 ED 1989 N Philadelphia C.P. Feb. 19, 2002) IAC penalty phase (failure Commonwealth v. McNeil, 545 160 McNeil, Christopher 1990 1992 S to object to victim impact 37 CAP N Philadelphia Pa. 42, 679 A.2d 1253 (1996) evidence)

PA030 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Stipulation and Order, Meadows IAC penalty phase (failure 161 Meadows, Thomas 1984 1990S v. Beard, No. 05-cv-566 (E.D. Pa. to object to victim impact 689 CAP N Montgomery Sept. 8, 2016) evidence) Commonwealth v. Mikell, 556 Pa. IAC guilt phase (failure to 162 Mikell, William 1987 1989 C 97 CAP N Philadelphia 509, 729 A.2d 566 (1999) request alibi instruction) IAC penalty phase (failure to challenge Miller v. Beard, 214 F. Supp. 3d 163 Miller, Dennis 1995 1997 S Commonwealth's expert) 204 CAP N Chester 304 (E.D. Pa. 2016) and insufficient waiver of penalty phase presentation Commonwealth v. Miller, 597 Pa. 164 Miller, Joseph 1987,89 1992 S Atkins v. Virginia 540 CAP N Dauphin 333, 951 A.2d 322 (2008) Bench Order, Commonwealth v. 165 Miller, Kenneth 1998 1999S Miller, No. CP-51-CR-902382- No grounds specified 678 CAP N Philadelphia 1998 (Phila. C.P. May 13, 2014) Commonwealth v. Moore, No. CP-

166 Moore, Mikal 1998 1999 S 51-CR-701141-1998 (Phila. C.P. Stipulated 396 CAP N Philadelphia Mar. 27, 2017) Commonwealth v. Moore, 500 Pa. IAC penalty phase and IAC 167 Moore, Tyrone 1982 1988 S 316 & 317 CAP N Luzerne 279, 860 A.2d 88 (2004) appellate counsel IAC penalty phase (failure Commonwealth v. Morales, 549 168 Morales, Salvador 1982 1983 S to object to prosecutorial 84 CAP N Philadelphia Pa. 400, 701 A.2d 516 (1997) misconduct) Order, Commonwealth v. Moran, 169 Moran, Willard 1980 1981 C No. CP-51-CR-3091-1981 (Phila. IAC guilt phase 141 ED 1991 N Philadelphia C.P. Jan. 25, 1999) Morris v. Beard, No. 01-cv-3070, Mills v. Maryland and IAC 170 Morris, Kelvin 1980 1987 5 2007 WL 1795689 (E.D. Pa. June 289 CAP N Philadelphia penalty phase 20, 2007) Commonwealth v. Murphy, 527 IAC guilt phase (failure to 171 Murphy, Craig 1981 1986 C 51 ED 1987 Y Philadelphia Pa. 309, 591 A.2d 278 (1991) cross-examine witness) Commonwealth v. Murray, 623 Erroneous aggravating 172 Murray, Harold 2005 2009 S 658 CAP N Montgomery Pa. 506, 83 A.3d 137 (2013) circumstance Erroneous aggravating circumstance and IAC Commonwealth v. Nelson, 514 173 Nelson, John 1983 1984 S penalty phase (failure to 43 WD 1984 N Erie Pa. 262, 523 A.2d 728 (1987) object to erroneous aggravator)

PA031 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Nieves, 560 Pa. IAC guilt phase (erroneous 174 Nieves, William 1992 1994 82 CAP N Philadelphia 529, 746 A.2d 1102 (2000) plea advice) Order, Commonwealth v.

175 Ockenhouse, John 1998 1998 S Ockenhouse, No. CP-39-CR-1664- Stipulated 254 CAP N Lehigh 1998 (Lehigh C.P. Apr. 16, 2003) Insufficient colloquy for Commonwealth v. O'Donnell, 559 176 O'Donnell, Kelly 1992 1994 5 waiver of right to jury 71 CAP N Philadelphia Pa. 320, 740 A.2d 198 (1999) sentencing Commonwealth v. Overby, No. CP- 177 Overby, Lamont 1996 1998 5 51-CR-1006081-1996 (Phila. C.P. Stipulated 239 CAP N Philadelphia Oct. 18, 2013) Commonwealth v. Overby, 570 178 Overby, Michael 1990 1998 Bruton v. United States 244 CAP N Philadelphia Pa. 328, 809 A.2d 295 (2002) Commonwealth v. Paolello, 542 Erroneous aggravating 179 Paolello, Anthony 1992 1993 5 47 CAP N Erie Pa. 47, 665 A.2d 439 (1995) circumstance Commonwealth v. Pelzer, 628 Pa. 631, 632, 633 & 180 Pelzer, Kevin 1988 1990 IAC penalty phase N Philadelphia 193, 104 A.3d 267 (2014) 634 CAP Order, Commonwealth v. Peoples, 181 Peoples, Al 1987 1990 5 No. CP-51-CR-1044981-1989 Stipulated 482 & 483 CAP N Philadelphia (Phila. C.P. June 24, 2011) Commonwealth v. Curry, 537 Pa. IAC guilt phase (failure to 182 Perry, Curry 1987 1990 7 CAP N Philadelphia 385, 644 A.2d 705 (1994) investigate) Confrontation clause violation, prosecutorial

misconduct , IAC guilt and Peterkin v. Horn, 176 F. Supp. 2d 183 Peterkin, Otis 1981 1982 C + 5 sentencing phase, 165 CAP N Philadelphia 342 (E.D. Pa. 2001) erroneous aggravating circumstance, and Mills v. Maryland Commonwealth v. Pirela, 593 Pa. 184 Pirela, Simon 1981 1983 Atkins v. Virginia 448 CAP N Philadelphia 312, 929 A.2d 629 (2007) Memorandum and Order, Commonwealth v. Proctor, No. CP-Brady 185 Proctor, Roger 1985 1986 5 v. Maryland 218 CAP N Crawford 20-CR-759-1985 (Crawford C.P. Dec. 30, 2002) Pursell v. Horn, 187 F. Supp. 2d IAC penalty phase and 186 Pursell, Alan 1981 1982 5 277 CAP N Erie 260 (W.D. Pa. Feb. 1, 2002) instructional error

PA032 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. Rainey, 187 Rainey, Michael 1989 1993S No. CP-51-CR-419613-1990 (Phila. IAC penalty phase 468 & 469 CAP N Philadelphia C.P. Mar. 6, 2008) Order, Commonwealth v. Ramos, 188 Ramos, Wilfredo 1998 2000S No. CP-51-CR-100891-1999 (Phila. IAC penalty phase 307 CAP N Philadelphia C.P. Apr. 17, 2008) Order, Commonwealth v. 189 Ramtahal, David 2006 2009S Ramtahal, No. CP-09-CR-6389-IAC penalty phase 588 CAP N Bucks 2008 (Bucks C.P. Sept. 19, 2013) Commonwealth v. Reyes, 582 Pa. 190 Reyes, Angel 1993 1994 S IAC penalty phase 359 CAP Y Delaware 317, 870 A.2d 888 (2005) Order, Commonwealth v. Reyes, IAC penalty phase (failure 191 Reyes, Angel 1993 2007S No. CP-23-CR-1388-1993 (Del. to review entire file and 554 CAP N Delaware C.P. 2011) retaining conflicted expert) Order, Commonwealth v. Rice, 192 Rice, Timothy 1996 1997S No. CP-51-CR-906231-1996 (Phila. Stipulated 253 CAP N Philadelphia C.P. Jan. 27, 2012) Stipulation and Order, Rivers v. 193 Rivers, Delores 1988 1991S Horn, No. 02-cv-1600 (E.D. Pa. IAC penalty phase 241 CAP N Philadelphia May 10, 2005) Jury misapplied statutory Commonwealth v. Rizzuto, 566 194 Rizzuto, Paul 1994 1998 S weighing law and 273 CAP N Philadelphia Pa. 40, 777 A.2d 1069 (2001) instructional error Commonwealth v. Rolan, No. CP-

195 Rolan, Florencio 1983 1985 S 51-CR-2893-1994 (Phila. C.P. Feb. IAC penalty phase N Philadelphia 4, 1998) Rollins v. Horn, 386 F. App'x 267 196 Rollins, Saharris 1986 1987 S IAC penalty phase 192 CAP N Philadelphia (3d Cir. 2010) Rompilla v. Beard, 545 U.S. 374 197 Rompilla, Ronald 1988 1988 S IAC penalty phase 152 CAP N Lehigh (2005) Order, Commonwealth v. Rucci, 198 Rucci, Dino 1989 1994S No. CP-63-CR-2164-1990 (Wash. IAC penalty phase 68 CAP N Washington C.P. Apr. 13, 2006) Order, Commonwealth v. 199 Sanchez, Alfonso 2007 2008 C Sanchez, No. CP-09-CR-1136-Brady v. Maryland 605 CAP N Bucks 2008 (Bucks C.P. Jan. 26, 2017)

PA033 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Brady v. Maryland, prosecutorial misconduct, IAC guilt phase (failure to Order, Commonwealth v. impeach witnesses), 200 Sanchez, Ramon 2001 2003 C Sanchez, No. CP-39-CR-3652- 464 CAP N Lehigh improper admission of prior 2001 (Lehigh C.P. Nov. 16, 2010) bad acts, and false testimony of Commonwealth expert Commonwealth v. Santiago, 528Miranda 201 Santiago, Salvador 1985 1985 C v. Arizona 99 WD 1986 Y Allegheny Pa. 516, 599 A.2d 200 (1991) Order, Commonwealth v. 202 Santiago, Salvador 1985 1993 5 Santiago, No. 04-cv-1669 (W.D. IAC penalty phase 180 CAP N Allegheny Pa. June 2, 2009)

Saranchak v. Sec'y, Pa. Dept. of 203 Saranchak, Daniel 1993 1994 5 IAC penalty phase 426 CAP N Schuylkill Corr., 802 F.3d 579 (3d Cir. 2015)

Commonwealth v. Sattazahn, 597 509, 510 & 511 204 Sattazahn, David 1987 1999 IAC penalty phase N Berks Pa. 648, 952 A.2d 640 (2008) CAP

Commonwealth v. Scott, No. CP- 205 Scott, Nathan 1998 1998 5 46-CR-1739-1998 (Montgomery Atkins v. Virginia 266 CAP N Montgomery C.P. June 30, 2003)

Commonwealth v. Sepulveda, 636IAC 206 Sepulveda, Manuel 2001 2003 5 penalty phase 712 CAP N Monroe Pa. 466, 144 A.3d 1270 (2016)

Simmons v. Beard, 590 F.3d 223 207 Simmons, Ernest 1992 1993 Brady v. Maryland 260 CAP N Cambria (3d Cir. 2009) Commonwealth v. Sims, 513 Pa. Confrontation clause 208 Sims, Bobby 1980 1983 52 ED 1984 N Philadelphia 366, 521 A.2d 391 (1987) violation Commonwealth v. Smith, 544 Pa. 209 Smith, Brian 1991 1991 5 IAC penalty phase 11 CAP N Luzerne 219, 675 A.2d 1221 (1996) Smith v. Horn, 120 F.3d 400 (3d 210 Smith, Clifford 1983 1985 5 In re Winship 23 CAP N Bucks Cir. 1997) Commonwealth v. Smith, 502 Pa. IAC guilt phase (failure to 211 Smith, Donald 1980 1981 9 WD 1983 N Fayette 600, 467 A.2d 1120 (1983) impeach witness) Order, Commonwealth v. Smith, 212 Smith, James 1979 1986 5 No. CP-51-CR-717891-1983 (Phila. IAC penalty phase 591 CAP N Philadelphia C.P. June 19, 2009)

PA034 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Smith, 523 Pa. 213 Smith, Jay 1979 1986 Brady v. Maryland 48 MD 1987 N Dauphin 577, 568 A.2d 600 (1989) Commonwealth v. Smith, 580 Pa. Improper prosecutorial 214 Smith, Lawrence 2000 2002 5 390 CAP N Philadelphia 392, 861 A.2d 892 (2004) argument Commonwealth v. Smith, 606 Pa. 215 Smith, Wayne 1994 1995 IAC penalty phase 436 CAP Y Delaware 127, 995 A.2d 1143 (2010) Commonwealth v. Sneed, 587 Pa. 216 Sneed, Willie 1980 1985 IAC penalty phase 366 CAP N Philadelphia 318, 899 A.2d 1067 (2006) Commonwealth v. Solano, 634 Pa. 217 Solano, Raymond 2001 2003 penalty phase 686 & 687 CAP N Lehigh 5IAC218, 129 A.3d 1156 (2015) Speight v. Beard, No. 04-cv-4110, 218 Speight, Melvin 1992 1993 5 2017 WL 914907 (E.D. Pa. Mar. 7, Stipulated 58 CAP N Philadelphia 2017) Commonwealth v. Spell, 611 Pa. Erroneous aggravating 219 Spell, Gaylord 2007 2009 5 592 CAP N Lawrence 584, 28 A.3d 1274 (2011) circumstance Order, Commonwealth v. Spence, 220 Spence, Morris 1986 1988 C No. CP-51-CR-933911-1996 (Phila. Batson v. Kentucky 70 ED 1990 N Philadelphia C.P. Mar. 22, 2004)

Commonwealth v. Stallworth, 566 Erroneous aggravating 221 Stallworth, Leroy 1998 1998 5 278 CAP N Lancaster Pa. 349, 781 A.2d 110 (2001) circumstance

Commonwealth v. Starr, 541 Pa. 222 Starr, Gary 1988 1988 Right to self-representation 32 CAP N Allegheny 564, 664 A.2d 1326 (1995) Commonwealth v. Strong, 563 Pa. 223 Strong, James 1983 1984 Brady v. Maryland 250 CAP N Luzerne 455, 761 A.2d 1167 (2000) Szuchon v. Lehman, 273 F.3d 299 Witherspoon v. Illinois, 391 224 Szuchon, Joseph 1981 1981 5 137 CAP N Erie (3d Cir. 2001) U.S. 510 (1968) Commonwealth v. Terry, 501 Pa. 225 Terry, Benjamin 1979 1979 C State law evidentiary ruling 80-3-595 Y Montgomery 626, 462 A.2d 676 (1983) Commonwealth v. Terry, No. CP- 226 Terry, Benjamin 1979 1984 5 46-CR-1565-79 (Montgomery C.P. IAC penalty phase 179 ED 1984 N Montgomery Oct. 22, 1996) Commonwealth v. Tharp, 627 Pa. 227 Tharp, Michelle 1998 2000 IAC penalty phase 637 CAP N Washington 673, 101 A.3d 736 (2014) Order, Commonwealth v. 228 Thomas, Brian 1985 1986 5 Thomas, No. 2:00-cv-803 (E.D. Pa. IAC penalty phase 552 CAP N Philadelphia Dec. 20, 2011)

PA035 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Order, Commonwealth v. 229 Thomas, Frederick 1993 1995 C Thomas, No. CP-51-CR-209891- Brady v. Maryland 132 CAP N Philadelphia 1994 (Phila. C.P. May 31, 2002) Commonwealth v. Thomas, No. 230 Thomas, LeRoy 1994 1995S CP-51-CR-1207001-1994 (Phila. IAC penalty phase 314 CAP N Philadelphia C.P. Jan. 11, 2007) Order, Commonwealth v. Thomaston, No. CP-51-CR- 231 Thomaston, Michael 1995 1997 S IAC penalty phase N Philadelphia 400541-1995 (Phila. C.P. Dec. 11, 2002)

Order, Commonwealth v. IAC guilt phase (failure to 232 Thompson, Andre 1992 1996 C Thompson, No. CP-51-CR-221931- 145 CAP N Philadelphia prepare alibi defense) 1993 (Phila. C.P. July 12, 2004)

Order, Commonwealth v. 233 Thompson, Louis 1990 1992 S Thompson, No. CP-51-CR-436071- Stipulated 22 CAP N Philadelphia 1990 (Phila. C.P. May 21, 2004)

Order, Commonwealth v. Tilley, 234 Tilley, William 1985 1987S No. CP-51-CR-1210781-1985 IAC penalty phase 9 ED 2000 N Philadelphia (Phila. C.P. Nov. 2, 2007) Order, Travaglia v. Morgan, No. Erroneous aggravating 235 Travaglia, Michael 1980 2:90-cv-1469 (W.D. Pa. Nov. 7, 42 CAP Y Westmoreland 1981S circumstance 1996) Commonwealth v. Trivigno, 561 236 Trivigno, Philip 1995 1996 S Simmons v. South Carolina 228 CAP N Philadelphia Pa. 232, 750 A.2d 243 (2000) Commonwealth v. VanDivner, Atkins v. Virginia and IAC 237 VanDivner, James W 2004 2007 S 696 CAP N Fayette 178 A.3d 108 (2018) penalty phase Order, Commonwealth v. Walker, 238 Walker, Shawn 1991 1993S No. CP-51-CR-2770-1991 (Phila. IAC penalty phase 43 CAP N Philadelphia C.P. Apr. 21, 2004) Commonwealth v. Wallace, 500 20 & 50 WD 239 Wallace, William 1979 1981 C Brady v. Maryland Y Washington Pa. 270, 455 A.2d 1187 (1983) 1982 Wallace v. Price, 243 F. App'x 710 Confrontation clause 240 Wallace, William 1979 1985 C 135 CAP N Washington (3d Cir. 2007) violation Order, Commonwealth v. Walter, 241 Walter, Shonda L 2003 2005S No. CP-18-CR-179-2003 (Clinton IAC penalty phase 645 CAP N Clinton C.P. July 26, 2016)

PA036 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Washington v. Beard, No. 07-cv- 242 Washington, Anthony 1993 1994 C 3462, 2015 WL 234719 (E.D. Pa. Brady v. Maryland 347 CAP N Philadelphia Jan. 16, 2015) Order, Commonwealth v. Washington, No. CP-51-CR- 243 Washington, Vinson 1993 1995 S Stipulated 352 CAP N Phila. 310321-1994 (Phila. C.P. July 15, 2008) Commonwealth v. Weiss, No. CP-

244 Weiss, Ronald 1978 1997 S 32-CR-218-199 (Indiana C.P. Mar. IAC penalty phase 543 CAP N Indiana 19, 2012) Commonwealth v. Wesley, 562 Erroneous aggravating 245 Wesley, Jake 1994 1996 S 221 CAP N Allegheny Pa. 7, 753 A.2d 204 (2000) circumstance IAC penalty phase (failure Commonwealth v. Wharton, 530 246 Wharton, Robert 1984 1986 S to object to erroneous 114 ED 1986 Y Philadelphia Pa. 127, 607 A.2d 710 (1992) instruction) Commonwealth v. Wheeler, 518 247 Wheeler, Ronald 1982 1983 S State law evidentiary ruling 98 ED 1985 N Bucks Pa. 103, 541 A.2d 730 (1988) Bench Order, Commonwealth v. 248 White, Derrick 2010 2012S White, No. CP-51-CR-12991-2010 IAC penalty phase 78 EAL 2016 N Philadelphia (Phila. C.P. May 19, 2014) Order, Commonwealth v. 249 Whitney, Raymond 1981 1982S Whitney, No. CP-51-CR-1114161-Atkins v. Virginia 333 CAP N Philadelphia 1981 (Phila. C.P. Jan. 16, 2008) Commonwealth v. Williams, 539 Erroneous aggravating 250 Williams, Antoine 1989 1991 S 41 CAP N Berks Pa. 61, 650 A.2d 420 (1994) circumstance IAC guilt phase (failure to Commonwealth v. Williams, 636 251 Williams, Christopher 1989 1995 C call expert) and IAC 694 & 695 CAP N Philadelphia Pa. 105, 141 A.3d 440 (2016) appellate counsel Commonwealth v. Williams, 619 252 Williams, Connie 1999 2002 S Atkins v. Virginia 611 CAP N Allegheny Pa. 219, 61 A.3d 979 (2013) Order, Commonwealth v. 253 Williams, Craig 1987 1990S Williams, No. CP-51-CR-424041- Stipulated 514 CAP N Philadelphia 1987 (Phila. C.P. Nov. 29, 2006) Commonwealth v. Williams, 597 IAC penalty phase and IAC 254 Williams, Kenneth 1983 1985 S 430 & 431 CAP N Lehigh Pa. 109, 950 A.2d 294 (2008) appellate counsel Commonwealth v. Williams, 514 255 Williams, Raymond 1984 1985 S Juror misconduct 43 WD 1985 N Butler Pa. 62, 522 A.2d 1058 (1987) Commonwealth v. Williams, 522 256 Williams, Ronald 1984 1985 S Juror misconduct 46 WD 1985 N Butler Pa. 287, 561 A.2d 714 (1989)

PA037 Pennsylvania Capital Case Reversals - By Name Conviction (C) or Year of Year of Resentenced to County of Name sentencing (5) Decision of reversal Grounds for reversal SCOPA docket # offense sentence death? conviction reversal? Commonwealth v. Williams, 641 257 Williams, Terrance 1984 1986 Brady v. Maryland 560 CAP N Philadelphia Pa. 283, 168 A.3d 97 (2017) Bench Order, Commonwealth v. 258 Wilson, Harold 1988 1989 C Wilson, No. CP-51-CR-3267 (Phila. Batson v. Kentucky 57 CAP N Philadelphia C.P. Jan. 17, 2003) Wilson v. Beard, 589 F.3d 651 (3d 259 Wilson, Zachary 1981 1988 Brady v. Maryland 230 CAP N Philadelphia Cir. 2009) Commonwealth v. Yarris, No. CP- 260 Yarris, Nicholas 1981 1983 C 23-690-1982 (Del. C.P. Sept. 3, Innocence 232 CAP N Delaware 2003) Commonwealth v. Young, 524 Pa. 261 Young, Joseph 1986 1988 5 Mills v. Maryland 107 ED 1988 Y Montgomery 373, 572 A.2d 1217 (1990) Commonwealth v. Young, 561 Pa. Confrontation clause 262 Young, Richard 1979 1995 C 34, 748 A.2d 166 (2000) (on 120 CAP N Lackawanna violation reargument) Commonwealth v. Zook, 520 Pa. 263 Zook, Robert Peter 1985 1986 C Miranda v. Arizona 37 ED 1987 N Lancaster 210, 553 A.2d 920 (1989) Commonwealth v. Zook, 585 Pa. 264 Zook, Robert Peter 1985 1990 5 IAC penalty phase 293 CAP N Lancaster 11, 887 A.2d 1218 (2005)

PA038 Pennsylvania Capital Case Reversals (Non -Final) Conviction (C) or Year of Year of County of Name sentencing (S) Decision Grounds for reversal SCOPA docket # offense sentence conviction reversal? Fahy v. Horn, No. 99-cv-5086, IAC penalty phase and 1 Fahy, Henry 1981 1983 S 2014 WL 4209551 (E.D. Pa. Aug. 215 CAP Philadelphia instructional error 26, 2014) Porter v. Horn, 276 F. Supp. 2d Mills v. Maryland, 486 U.S. 2 Porter, Ernest 1985 1986 S 131 CAP Philadelphia 278 (E.D. Pa. 2003) 367 (1988) Steele v. Beard, 830 F. Supp. 2d 3 Steele, Roland 1985 1988 S Mills v. Maryland 358 CAP Washington 49 (W.D. Pa. 2011) IAC penalty phase, denial of Commonwealth v. Montalvo, No. expert funds, and Caldwell 4 Montalvo, Milton 1998 2000 S CP-67-CR-3183-1998 (York C.P. 301 CAP York v. Mississippi, 472 U.S. 320 May 22, 2017) (1985) Order and Opinion, Commonwealth v. Housman, No. 5 Housman, William 2000 2002 S IAC penalty phase 452 CAP Cumberland CP-21-CR-0246-2001 (Cumberland C.P. Feb. 2, 2018) Rega v. Wetzel, No. 2:13-cv-1781, IAC penalty phase (failure to 6 Rega, Robert 2000 2002 2018 WL 897126 (W.D. Pa. Feb. rebut aggravator) and IAC 642 CAP Jefferson 15, 2018) appellate counsel

PA039 OXFORD JOURNALS OXFORD Uhiri/E.RSMY PRESS

An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania Author(s): William Bradford Source: The American fournal of Legal History, Vol. 12, No. 2 (Apr., 1968), pp. 122-175 Published by: Oxford University Press Stable URL: https://www.jstor.org/stable/844385 Accessed: 12-12-2018 19:20 UTC

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PA040 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms DOCUMENTS

An Enquiry how far the Punishment of Death is Necessary in Pennsylvania

by WILLIAM BRADFORD Editor's Introduction HE CRIMINAL LAW IN AMERICA underwent significant changes I immediately following the American Revolution. Punishments were reduced in severity and "cruel and unusual punishments," so common in the colonial period, were abolished. No longer were prisoners to sit in a pillory for hours on end or have their ears nailed to a wall and later cut off. These changes came at different periods in the different states, but the trend definitely began in Pennsylvania. The Constitution of Pennsylvania for 1776 provided: "the penal laws as heretofore used shall be reformed by the legislature of this state, as soon as may be, and punishments made in some cases less sanguinary, and in general more proportionate to the crimes." (Sec. 38) The author of this particular provision is unknown. It is rather unusual that this subject was a matter of such concern to a significant number of delegates that it was incorporated into the Constitution, when so many political events were taking place which were more pressing. However, at the same time this Constitution was written, Thomas Jefferson in Virginia was likewise seeking a revision of the criminal law. Just what steps were taken to implement this constitutional mandate is not clear, nor is it known which individuals encouraged the legislative enactments. However, William Bradford, who had served as Attorney General of the state from 1780 through 1791, and later as a justice of the Supreme Court of the state, prepared the pamphlet which is reprinted here dealing with the conditions of the criminal law during the colonial period. The main purpose of the pamphlet clearly was to indicate that the punishment should be more proportionate to the offense. This pamphlet was well ;received and printed in full in the Journal of the Senate for January 5, 1793,1 and as a separate publication in the same year. However, the General Assembly had previously enacted a statute in 1786 reducing the penalty for certain capital offenses to punish- ment by hard labor and making some offenses bailable before the

1 At page 38. 122 PA041 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 123 judges of the Supreme Court. However, this act was limited in duration to three years. In 1790 a new statute incorporating many of the provisions of the old one was enacted and various new re- forms were added. This pamphlet by Bradford apparently convinced the General Assembly to make these changes permanent. As anyone knows, a great gap exists between the letter of law and its application. The great significance of this pamphlet is that it gives a review of the operation of the criminal law in the colonial period such as is unavailable in any other source. The author had lived through some of the period and had access to members of the Bar and records which are not available to us today. The figures he gives concerning crime are unique; no similar source is known to this editor. Although the report was received with acclaim by the General Assembly, it is now difficult to appraise its impact on the Act of 1794, which made permanent many of the reforms which had been in the previous temporary laws. Whether the pamphlet had any influence beyond the boundaries of Pennsylvania is not clear either, but it is significant that the author knew of the work of Thomas Jefferson and the Virginia legislature. This knowledge may be explained by the fact that Bradford served as Attorney General in the federal government and this information came to his atten- tion through his associations with the group of Virginians sur- rounding Washington. Another Pennsylvania institution which apparently served as a model in other states was the penitentiary located in Philadelphia. This pamphlet includes a description of the penitentiary by Caleb Lownes, a leader in establishing the institution. This part of the pamphlet, including the rules of the institution, will be published in the July issue. In the opinion of the Editors, the chief merit of this pamphlet is that it gives an insight into the application of the criminal law before the period when changes were made. For this reason, it was judged to be of sufficient interest to publish in the JOURNAL. The original copy of this pamphlet is in the Rare Book Collection of the Temple University Library, and the Editors would like to express their appreciation to its staff for making this copy available. The Editor has made no attempt to change the text of the pamphlet. The errata have been incorporated into the text and hence this section of the original is omitted. It was felt that it was unnecessary to expand the footnotes of the author; it is left to the reader to trace sources to which Bradford refers. They all are well-known works of that period. The original pagination is in- dicated by the figures in brackets.

PA042 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms A N E N Q U I R Y

HOW FAR

THE PUNISHMENT OF DEATH IS NECESSARY

IN PENNSYLVANIA WITH NOTES AND ILLUSTRATIONS.

BY WILLIAM BRADFORD, ESQ.

To which is added, AN ACCOUNT OF THE GAOL AND PENITENTIARY HOUSE OF PHILADELPHIA, AND OF THE INTERIOR MANAGE- MENT THEREOF. BY CALEB LOWNES, OF PHILADELPHIA.

If we enquire into the cause of all human corruptions, we shall find that they proceed from the impunity of crimes, and not from the moderation of punishments. MONTESQ.

PHILADELPHIA: PRINTED BY T. DOBSON AT THE STONE -HOUSE, NO. 415 SOUTH SECOND-STREET. M,DCC,XCIII. 124

PA043 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms [a2] ADVERTISEMENT.

THE following memoir was written at the request, and pre- sented to the Governor of Pennsylvania, on the third day of last December. The nature of this communication, as well as the neces- sity of completing it by that day, required brevity; and a more extended view of the subject, was on many accounts inexpedient. Hence, some information, which might have been proper in a work designed for general circulation, was suppressed, and the experience of other countries was rather glanced at than explained. It having been thought advisable to publish this memoir in its present form, an opportunity was afforded the writer of making such additions as his other avocations would permit. Further time would have enabled him to furnish more accurate and particular information of the experience of the other States: but those who have interested themselves in this publication, think it ought not to be any longer delayed. The additional information might have been advantageously blended with the original memoir: but as the Senate of the Com- monwealth, have honored that work, by placing it on their journals, there was a propriety in keeping it distinct. The new matter is therefore thrown into the form of Notes and Illustrations at the end of the memoir-a few paragraphs only, necessary to introduce the notes, being added to the text. [a4] Although the world has seen a profusion of Theory on the subject of the Criminal Law: it is to be regretted that so few writers have been solicitous "to throw the light of experience upon it." To supply, in some measure, this defect-to collect the scattered rays which the juridical history of our own and other countries affords-and to examine how far the maxims of philosophy abide the text of experiment, have, therefore, been the leading objects of this work. The facts adduced, are stated with as much brevity, as was consistent with clearness; and, as accuracy was indispensable, none have been lightly assumed, and few without a coincidence of authorities. Philadelphia, Feb. 26, 1793.

125

PA044 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms AN ENQUIRY, &c. INTRODUCTION. THE general principles upon which penal laws ought to be founded appear to be fully settled. Montesquieu and Beccaria led the way in the discussion, and the philosophy of all Europe, roused by the boldness of their march, has since been deeply engaged on this interesting topic. Independent of the force of their reasoning a remarkable coincidence of opinion, among the enlighted writers on this subject, seems to announce the justness of their conclusions: and the questions which still exist are rather questions of fact than of principle. Among these principles some have obtained the force of axioms, and are no longer considered as the subjects either of doubt or demonstration. "That the prevention of crimes is the sole end of punishment," is one of these: and it is another, "That every punish- ment which is not absolutely necessary for that purpose is a cruel and tyrannical act." To these may be added a third, (calculated to limit the first) which is, "That every penalty should be propor- tioned to the offence."

126

PA045 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 127

[4] These principles, which serve to protect the rights of humanity and to prevent the abuses of government, are so impor- tant that they deserve a place among the fundamental laws of every free country. The enlightened patriots who composed the first National Assembly in France, placed this check on the power of punishment, where it ought to be placed, among "the rights of a man and a citizen." They had long witnessed the ferocity of the criminal law, and they endeavoured to guard against it by declaring, in precise and definite terms, "That the law ought to establish such punishments only as are strictly and evidently necessary." * Few of the American constitutions are sufficiently express, though they are not silent, on this subject. That of New-Hampshire declares, "That all penalties should be proportioned to the nature of the offense, and that a multitude of sanguinary punishments is im- politic and unjust, the true design of all punishments being to reform, and not to exterminate, mankind." The constitution of Vermont enjoins the introduction of hard labor as a punishment, in order to lessen the necessity for such as are capital: and that of Pennsylvania framed in 1776, directed the future Legislature "to reform the penal laws-to make punishments less sanguinary, and, in some cases, more proportioned to the offenses." But it was in Maryland alone that the general principle was asserted; and, in the enumeration of their rights, we find it declared, "That san- guinary punishments ought to be avoided as far as is consistent with the safety of the state" f. The other constitutions which touch on this subject content themselves with generally declaring, "That cruel punishments ought not to be inflicted." But, does not this involve the same principle, and impli- [5] citly prohibit every penalty which is not evidently necessary? One would think, that, in a nation jealous of its liberty, these important truths would never be overlooked; and, that the infliction of death, the highest act of power that man exercises over man, would seldom be prescribed where its necessity was doubtful. But on no subject has government, in different parts of the world, discovered more indolence and inattention than in the construction or reform of the penal code. Legislators feel themselves elevated above the commission of crimes which the laws proscribe, and they have too little personal interest in a system of punishments to be critically exact in restraining its severity. The degraded class of men, who are the victims of the laws, are thrown at a distance which obscures their sufferings and blunts the sensibility of the Legislator. Hence sanguinary punishments, contrived in despotic * S. VIII. t S. XIV.

PA046 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 128 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 and barbarous ages, have been continued when the progress of freedom, science, and morals renders them unnecessary and mis- chievous: and laws, the offspring of a corrupted monarchy, are fostered in the bosom of a youthful republic. But it is pleasing to perceive that of late this indolence has not been able to resist the energies of truth. The voice of Reason and Humanity has not been raised in vain. It has already "forced its way to the thrones of Princes," and the impression it has made on the governments of Europe is visible in the progressive ameliora- tion of their criminal codes. A spirit of reform has gone forth-the empire of prejudice and inhumanity is silently crumbling to pieces -and the progress of liberty, by unfettering the human mind, will hasten its destruction. (a) [6] Happily for Pennsylvania the examination and reform of the penal laws have been considered by the Legislature as one of its most imoprtant duties. Much attention has been paid to this subject since the revolution. Capital punishments have, in several instances, been abolished; and, in others, the penalty has been better proportioned to the offence. This has been considered as the commencement of a more general reform; and, if the result of the experiment shall be found to be such as the friends of humanity wish, it has been generally expected, that the Legislature would resume the benevolent task. Proceeding with that caution, which innovation on an ancient system demands, they have paused in their labors, but it is hoped they have not abandoned the work. What success has attended the new system of punishments is, therefore, a question interesting to humanity. Some years have elapsed since its first establishment, and we now have data sufficient to calculate its effects. To aid this important enquiry,-to review the crimes which are still capital in Pennsylvania,-and to examine, whether the punishment of death be, in any case, necessary, is the object of the present attempt.

ON CAPITAL PUNISHMENTS. IT being established, That the only object of human punish- ments is the prevention of crimes, it necessarily follows, that when a criminal is put to death, it is not to revenge the wrongs of society, or of any individual-"it is not to recall past time and to undo what is already done:" but merely to prevent the offender from repeating the crime, and to deter others from its commission, by the terror of the punishment. If, therefore, these two objects can be obtained (a) See NOTE I [infra, p. 156.]

PA047 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 129 by any penalty short of death, [7] to take away life, in such case, seems to be an authorized act of power. That the first of these may be accomplished by perpetual im- prisonment, unless the unsettled state, the weakness or poverty, of a government prevents it, admits of little dispute. It is not only as effectual as death, but is attended with these advantages, that reparation may sometimes be made to the party injured-that pun- ishment may follow quick upon the heels of the offence, without violating the sentiments of humanity or religion,-and if, in a course of years, the offender becomes humbled and reformed, society, instead of losing, gains a citizen. It is more difficult to determine what effects are produced on the mind by the terror of capital punishments; and, whether it be absolutely necessary to deter the wicked from the commission of atrocious crimes. This is the great problem, to the solution of which, all the facts I shall have occasion to mention hereafter, will be directed. If capital punishments are abolished, their place must be supplied by solitary imprisonment, hard labor, or stripes: and it has been often urged, that the apprehension of these would be more terrible and impressive than death. This may be the case where great inequality is established between the citizens, where the oppressions of the great drive the lower classes of society into penury and despair, where education is neglected, manners ferocious, and morals depraved. In such a country-and such there are in Europe-the prospect of death can be no restraint to the wretch whose life is of so little account, and who willingly risks it to better his condition. But in a nation where every man is or may be a proprietor, where labor is bountifully rewarded, and existence is a blessing of which the poorest citizen feels the value, it cannot [8] be denied, that death is considered as the heaviest punishment the law can inflict. The impression it makes on the public mind is visible when a criminal is tried for his life. We feel it in the general expectation-in the numbers that throng the place of trial-in the looks of the prisoner-in the anxious attention and long deliberation of the jury, and in the awful silence which pre- vails while the verdict is given in by their Foreman. All these announce the inestimable value which is set on the life of a citizen. But the reverse of this takes place when imprisonment at hard labor is the punishment, and the minds of all present, are free from the weight which oppresses them during a trial of a capital charge. The dread of death is natural, universal-impressive: and destruction is an idea so simple that all can comprehend and esti- mate it : while the punishment of imprisonment and hard labor,

PA048 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 130 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 secluded from common observation, and consisting of many parts, requires to be contemplated or felt, before its horrors can be realized. But, while this truth is admitted in the abstract, it cannot be denied, that the terror of death is often so weakened by the hopes of impunity, that the less punishment seems a curb as strong as the greater. The prospect of escaping detection and the hopes of an acquittal or pardon, blunt its operation and defeat the expecta- tions of the Legislature. Experience proves that these hopes are wonderfully strong, and they often give birth to the most fatal rashness*. Through the violence [9] of the temptation the offender over-looks the punishment, or sees it "in distant obscurity." Few, who contemplate the commission of a crime, deliberately count the cost. These circumstances make it doubtful, whether capital punish- ments are beneficial in any cases, except in such as exclude the hopes of pardon. It is the universal opinion of the best writers on this subject, and many of them are among the most enlightened men of Europe, That the imagination is soon accustomed to over- look or despise the degree of the penalty, and that the certainty of it is the only effectual restraint. They contend, that capital punishments are prejudicial to society from the example of bar- barity they furnish, and that they multiply crimes instead of preventing them. In support of this opinion, they appeal to the experience of all ages. They affirm, it has been proved, in many instances, that the increase of punishment, though it may suddenly check, does not, in the end, diminish the number of offenders.(b) They appeal to the example of the Romans, who, during the most prosperous ages of the Commonwealth, punished with death none but their slaves. They appeal to the East Indians, that mild and soft people, where the gentlest punishments are said to be a curb as effectual as the most bloody code in other countries. (c) They appeal to the experience of modern Europe,-to the feeble operation of the

* Soon after the act to amend the penal laws was passed two persons were convicted, one of robbery the other of burglary, committed previous to it. These had the privilege of accepting the new punishment instead of the old: but, they obstinately refused to pray the benefit of the act, and submitted to the sentence of death in expectation of a pardon. The hopes of one were realized; but the other was miserably disappointed. The unavailing regret he expressed when his death warrant was an- nounced and the horrors which seized him when he was led to execution proved, at once, how terrible is the punishment of death and how strong are the hopes of pardon! (b) See NOTE II [infra, p. 158.] (c) Montesq, B. 14. ch. 15. See NOTE III [infra, p. 159.]

PA049 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 131 increased severity against robbers and deserters in France,-and to the situation of England, where, amidst a multitude of sangui- nary and atrocious laws, the number of crimes is greater than in any part of Europe. They cite the example of Russia,t where the intro- [10] duction of a milder system has promoted civiliza- tion, and been productive of the happiest effects: (d) and they applaud the bolder policy of Leopold, which has actually lessened the number of crimes in Tuscany, by the total abolition of all capital punishments. This instructive fact is not only authenticated by discerning travellers, but is announced by the celebrated Edict of the Grand Duke, issued so lately as 1786. (e) To these might be added the example of Sweden and Denmark: and indeed the more closely we examine the effects of the different criminal codes in Europe the more proofs we shall find to confirm this great truth, That the source of all human corruption lies in the impunity of the criminal not in the moderation of Punishment.(f) The experience of America does not contradict that of Europe. Crimes, which are capital in one state, are punished more mildly in another: and, in the same state, offences which were formerly capital are not so at present. Such are those of horse -stealing, forgery, counterfeiting bills of credit or the coin, robbery, burglary, and some others: but, I cannot learn that these crimes have been better repressed by the punishment of death than by a milder penalty. Horse -stealing has always been treated like the other kinds of simple larceny in New England and in Pennsylvania: in all the states southward of Maryland, it is a capital crime. In the latter states the offence seems to be as common as in the former; and if the severity of the punishment has any beneficial effect, my enquiries have not been able to ascertain it. On the contrary I have the best authority for say- [11] ing, that, in Virginia, the effect is so feeble, that of all crimes this is the most frequent. New Jersey has made the experiment fairly. At first it was a felony of death: in 1769 the law was repealed: it was again revived in 1780; but after a few years experience, the Legislature was obliged to listen once more to the voice of humanity and sound policy. The unwill- ingness of witnesses to prosecute, the facility with which juries acquitted, and the prospects of pardon, created hopes of impunity which invited and multiplied the offense.(g) In the case of forgery the balance is clearly on the side of the milder punishment. It is capital in New York, but it is not

Beccaria. Voltaire 4. Black. Com. p. 10. (d) See NOTE IV [infra, p. 160.] (e) See NOTE V [infra, p. 161.] (f) Montesq. B. 6. ch. 12. See NOTE VI [infra, p. 162.] (g) See NOTE VII [infra, p. 166.]

PA050 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 182 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 so in Pennsylvania; and, in the latter state, there have been fewer convicts of this crime than in the former. It is natural that it should be so; for the public sentiment revolting against this severity, very few have been executed : and the mischief became so apparent, that the late Attorney General thought it his duty to present a memorial to the Assembly and to re -recommend a milder punishment than death. Another fact deserves notice. Bank bills have been several times forged in the state of New York: but in Pennsylvania this crime has never been committed, although the act which made it capital at first, was repealed above seven years ago. Counterfeiting the continental bills of credit and uttering them knowingly, were, as far as I can learn, much more frequent in this state, where they were capital, than in Connecticut where they were not. It appears, by the annexed table, that, in the space of two years, while such bills were current, there were eighteen persons tried for these [12] crimes, of whom eleven were con- victed. This is nearly equal to all the other instances of forgery, not capital, that have occurred in the long term of fourteen years. Robbery, burglary, and the crime against nature were formerly punished with death in this state : since the year 1786, they have been as effectually restrained by the gentler penalties of imprison- ment and hard labor. The experience of Maryland, and, also, of Connecticut, where a similar system has been adopted with regard to the two first of these crimes, is said to establish the same fact.(h). Hereafter there may be occasion further to illustrate this part of the subject: yet, even these facts incline us to suspect, that, in most cases to which it is applied, the terror of death (lessened as it is by the hopes of impunity) is neither necessary nor useful. May not milder penalties, strictly enforced, have as great an effect? Is there not sound wisdom in establishing a species of punishment in which the grade of criminality may be marked by a correspondent degree of severity? May we not be allowed to suspect, that any apparent necessity results rather from the indolence and inatten- tion of governments than from the nature of things? and, may we not infer, that a Legislature would be warranted to abolish this dreadful punishment in all cases (except in the higher degrees of treason and murder) and to make, in this country, a fair experi- ment in favor of the rights of human nature. In no country can the experiment be made with so much safety, and such probability of success, as in the United States. (h) See NOTE VIII [infra, p. 167.]

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In the old and corrupted governments of Europe, especially in the larger states, a reform in the criminal law has real difficulties to encounter. The multitude of offen- [13] ders-the unequal state of society-the ignorance, poverty and wretchedness of the lowest class of the people-corruption of morals-and habits and manners formed under sanguinary laws, make a sudden relaxation of pun- ishment, in those countries, a dangerous experiment. But in Amer- ica every thing invites to it: and strangers have expressed their surprise, that we should still retain the severe code of criminal law, which, during our connection with Britain, we copied from her. "I am surprized, says a late traveller through America,1 that the penalty of death is not abolished in this country where morals are so pure, the means of living so abundant, and misery so rare, that there can be no need of such horrid pains to prevent the com- mission of crimes." That these punishments ought to be greatly lessened, if not totally abolished, is the opinion of many of the most enlightened men in America : among these I may be allowed to mention the respectable names of Mr. Jefferson, Mr. Wythe and Mr. Pendleton of Virginia, who, as a committee of revision in their report, to the General Assembly of that state, recommended the abolition of capital punishments in all cases but those of treason and murder: a proposal, which, unfortunately for the interests of humanity, was rejected in the Legislature by a single vote. But authorities may mislead and theory may be delusive. Gov- ernment is an experimental science: and a series of well established facts in our state is the best source of rational induction for us. I shall, therefore, after taking an historical view of our criminal law, proceed to examine the practical effects of the new system of punishments-(adopted in 1786, and improved by new regula- tions, intro- [14] duced in 1790)-of those which are still capital-and to accompany them with such observations as a course of some years experience may suggest.

HISTORICAL VIEW OF THE CRIMINAL LAW OF PENNSYLVANIA. IT was the policy of Great Britain to keep the laws of the Colonies in unison with those of the mother country. This principle extended not only to the regulation of property, but even to the criminal code. The royal charter to William Penn directs, That the laws of Pennsylvania "respecting felonies, should be the same with those of England, until altered by the acts of the future Legislature," who are enjoined to make these acts "as near, as t M. Briffot. p. 743.

PA052 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 134 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 conveniently may be, to those of England :" and in order to prevent too great a departure, a duplicate of all acts are directed to be transmitted, once in five years, for the royal approbation or dissent. The natural tendency of this policy was to overwhelm an infant colony, thinly inhabited, with a mass of sanguinary punishments hardly endurable in an old, corrupted and populous country. But the Founder of the province was a philosopher whose elevated mind rose above the errors and prejudices of his age, like a mountain, whose summit is enlightened by the first beams of the sun, while the plains are still covered with mists and darkness. He compre- hended, at once, all the absurdity of such a system. In an age of religious [15] intolerance he destroyed every restraint upon the rights of conscience, and insured not merely toleration, but abso- lute protection,} to every religion under heaven. He abolished the ancient oppression of forfeitures for self -murder, and deodands in all cases of homicide. He saw the wickedness of exterminating where it was possible to reform; and the folly of capital punish- ments in a country where he hoped to establish purity of morals and innocence of manners. As a philosopher he wished to extend the empire of reason and humanity; and, as a leader of a sect, he might recollect that the infliction of death, in cold blood, could hardly be justified by those who denied the lawfulness of defensive war. He hastened, therefore, to prevent the operation of the system which the charter imposed, and among the first cares of his adminis- tration, was that of forming a small, concise, but complete code of criminal law, fitted to the state of his new settlement: a code which is animated by the pure spirit of philanthropy, and, where we may discover those principles of penal law, the elucidation of which has given so much celebrity to the philosophy of modern times. The punishments prescribed in it were calculated to tie up the hands of the criminal-to reform-to repair the wrongs of the injured party-and to hold up an object of terror sufficient to check a people whose manners he endeavoured to fashion by

* This clause, introduced into several of the charters, was considered as imposing the English statutes. The Assembly of North Carolina, in their acts, passed 1716, declare, that, "From hence it is manifest that the laws of England are our laws as far as they are compatible with our way of living and trade." A similar attempt, to introduce the British statutes, was more than once made in early times in Pennsylvania but was always steadily opposed by the General Assembly. If any one shall abuse or deride another for his persuasion or practice in religion, he shall be punished as a disturber of the peace. Laws, 1682. Ch. I.

PA053 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 135 provisions interwoven in the same system. Robbery, burglary, arson, rape, the crime against nature, forgery, levying war against the Governor, conspiring his death, and other crimes, deemed so heinous in many countries, and for which so many thousands have been [16] executed in Britain, were declared to be no longer capital. Different degrees of imprisonment at hard labor-stripes-fines and forfeitures, were the whole compass of punishment inflicted on these offences. Murder, "wilful and premeditated," is the only crime for which the infliction of death is prescribed; and this is declared to be enacted in obedience "to the law of God," as though there had not been any political necessity even for this punishment apparent to the Legislature. Yet even here the life of the citizen was guarded by a provision, that no man should be convicted but upon the testi- mony of two witnesses, and, by a humane practice, early introduced, of staying execution till the record of conviction had been laid before the Executive, and full opportunity given to obtain a pardon of the offence or a mitigation of the punishment. These laws were at first temporary, but being, at length, per- manently enacted, they were transmitted to England, and were all, without exception, repealed by the Queen in Council. The rights of humanity, however, were not tamely given up: the same laws were immediately reenacted, and they continued until the year 1718, and might have remained to this day had not high handed measures driven our ancestors into an adoption of the sanguinary statutes of the Mother Country. During this long space of thirty-five years, it does not appear that the mildness of the laws invited offences, or that Pennsylvania was the theatre of more atrocious crimes than the other Colonies. The judicial records of that day are lost: but, upon those of the legislative or executive departments and other public papers, no complaint of their inefficacy can be found; nor any attempt to punish these crimes with death. On the contrary, as these laws were temporary the [17] subject was often before the Legislature, and they were often re-enacted: which is a decisive proof that they were found adequate to their object. Under this policy the province flourished: but during the bois- terous administration of Governor Gookin, a storm was gathering over it which threatened to sweep away not only this system of laws, but, with it, the privileges of the people. The administration of government, in all its departments, had, from the first settlement of the province, been conducted under the solemnity of an attesta- tion instead of an oath. The laws upon this subject were repealed in England, and, by an order of the Queen in Council, all officers and witnesses were obliged to take an oath, or, in lieu thereof, the affirmation allowed to Quakers in England by the statute of

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William III. But the Assembly chose to legislate for themselves on this important subject; and this, together with the refusal to adopt the English statutes in other cases, had given offence. The conduct of the Assembly, in their disputes with the Governor, was misrepre- sented-suspicions of disaffection were propagated-the declining health of the Proprietor left them without an advocate, and his necessities threatened them with a surrender of the government into the hands of the crown. At this moment the Quakers were alarmed with the prospect of political annihilation. It was said, that the act of I George I. which prohibits an affirmation in cases of qualifications to office or in criminal suits, extended to the colony and superceded the ancient laws. This construction, which was advocated by the Governor, and tended to exclude the majority of the settlers from all offices and even from the protection of the law, threw the whole province into confusion. The Governor refused to administer the affirmation as [18] a qualification for office-the Judges refused to sit in criminal cases-the administration of justice was suspended, and two atrocious murderers remained in gaol three years without trial. The Assembly were alarmed, but they resolutely and forcibly as- serted the rights of the people: and Gookin was at length re -called.* On the accession of Sir William Keith a temporary calm took place-the criminals were convicted under the old forms of proceed- ing, and executed agreeably to their sentence. A representation and complaint of this was made to the Crown; and the Assembly were panick struck with the intelligence. They trembled for their privileges-they were weary of the contest which had so long agi- tated them, and impatient to obtain any regular administration of justice consistent with their fundamental rights. They had been assured by the Governor that the best way to secure the favor of their Sovereign was to copy the laws of the Mother Country,-"the sum and result of the experience of ages." The advice was pursued-a resolution to extend such of the British penal statutes, as suited the province, was suddenly entered into. An act for this purpose (containing a provision to secure the right of affirmation to such as conscientiously scrupled an oath) was drawn up by David Lloyd, the Chief Justice, and, together with a petition to the Crown, was passed in a few days.t So anxious were they to conform, that they not only sur- rendered their ancient system, but left it to the British Parliament

* 2 Votes of Assembly, 150, 188, 194-5, 200, et passim. f 2 Votes of Assembly, 224, 253-4-5, &c.

PA055 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 137 to legislate for them, in [19] future, upon this subject:} and so humbled that they departed, in their petition, from their usual stile,t and directed their Speaker to solicit the Vestry and some members of the Church of England to join in a similar address. The sacrifice was accepted, and the privilege of affirmation, so anxiously desired, was confirmed by the royal sanction. Thus ended this humane experiment in legislation, and the same year, which saw it expire, put a period to the life of its benevolent Author. The royal approbation of this act was triumphantly announced by the Governor, and such was the satisfaction of seeing its privi- leges secured, that the province did not regret the price that it paid. By this act, which is the basis of our criminal law, the follow- ing offences were declared to be capital: high treason (including all those treasons which respect the coin) petit treason, murder, robbery, burglary, rape, sodomy, buggery, malicious maiming, man- slaughter by stabbing, witch -craft and conjuration, arson,§ and every other felony (except larceny) on a second conviction. The statute of James I. respecting bastard children, was extended, in all its rigor, and the courts were authorized to award execution forthwith. To this list, already too large, were added, at subsequent periods, counterfeiting and uttering counterfeit bills of credit, counterfeit- ing any current gold or silver coin, and the crime of arson, [20] was extended so as to include, the burning of certain public build- ings. All these crimes, except perhaps, the impossible one of witch- craft, were capital at the revolution. We perceive, by this detail, that the severity of our criminal law is an exotic plant and not the native growth of Pennsylvania. It has been endured, but, I believe, has never been a favorite. The religious opinions of many of our citizens were in opposition to it: and, as soon as the principles of Beccaria were disseminated, they found a soil that was prepared to receive them. During our con- nection with Great Britain no reform was attempted: but, as soon as we separated from her, the public sentiment disclosed itself, and this benevolent undertaking was enjoined by the constitution. This

Persons attainted, &c. are to suffer "as the laws of England now do or hereafter shall direct." Act, 1718. § VI. $ But the principle was saved by directing the Speaker to sign it with an exception. § I include arson in this list, because such was the construction of the act at the time and long after its passing. One Hunt was actually executed under it. But, on a sounder construction it being held to be a felony within clergy, this benefit was expressly taken away in 1767.

PA056 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 188 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 was one of the first fruits of liberty, and confirms the remark of Montesquieu,* "That, as freedom advances, the severity of the penal law decreases." In obedience to these injunctions, the Assembly proceeded, in the year 1786, to introduce the punishment of hard labor; and the offences (formerly capital) on which its effects have been tried, are, the crime against nature, robbery and burglary. We are now to enquire whether this punishment has been less efficacious in preventing these crimes than the punishment of death. To aid this enquiry, a table exhibiting a view of the number of persons convicted, acquitted and executed, since the year 1778, is annexed. OF THE CRIME AGAINST NATURE. THIS crime, to which there is so little temptation, that phil- osophers have affected to doubt its [21] existence, is, in America, as rare as it is detestable. In a country where marriages take place so early, and the intercourse between the sexes is not difficult, there can be no reason for severe penalties to restrain this abuse. The wretch, who perpetrates it, must be in a state of mind which may occasion us to doubt, whether he be sui Juris at the time; or, whether he reflects on the punishment at all. The infamy of detec- tion would, of itself, be a punishment sufficient to restrain any one who was not certain of being undiscovered: and what terror has any punishment to him who believes that his crime will never be known? The experiment that has been made, proves that the mild- ness of the punishment has not encreased the offence. In the six years preceding the act, and while the crime was capital, there are on record two instances of it. In the same period since, there is but one. It was impossible this last offender could be seduced by the mildness of the punishment, because at the time, and long after his arrest, he believed it to be a capital crime. These facts prove, that to punish this crime with death would be a useless severity. They may teach us, like the capital punish- ments formerly inflicted on adultery and witch -craft, how dangerous it is rashly to adopt the Mosaical institutions. Laws might have been proper for a tribe of ardent barbarians wandering through the sands of Arabia which are wholly unfit for an enlightened peo- ple of civilized and gentle manners. ROBBERY AND BURGLARY. THE salutary effects of this change in our laws are not so evident in the cases of robbery and burglary as in that of the crime against nature. On the contrary, a superficial inspection of the

* Book VI. ch. 9.

PA057 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 139 annex- [22] ed table would lead a careless observer to believe that it has tended to encourage these crimes instead of suppressing them. It is true, there were, at first, great defects in the plan and still greater in the execution: and, for some time after its adoption, it had difficulties to struggle with which nothing but the native merit of its principle could have surmounted. A detail of these is necessary to enable us justly to appreciate this new system of punishment. It must be remarked, that about three -fourths of the convictions of robbery and burglary, stated in the table, took place in Phila- delphia. In a large city like this there is always a class of men, sometimes greater and sometimes less, who live by dishonest means, and considering theft as a regular vocation, pass through all the gradations of simple larceny into the higher departments of robbery and burglary. It so happened, that about the time of passing the act for amending the penal laws, there was accumulated in the gaol of the city and county of Philadelphia a great number of persons who had been convicted of these and other infamous crimes, and were either pardoned by the mercy of the government, or had un- dergone the punishment (and some of them the repeated punish- ment) of the pillory and whipping-post. These wretches, hardened by the nature of the punishment they had sustained-shut up to- gether in idleness-freely supplied with liquor-witnesses of each others debauchery - instructing the inexperienced in the arts of villainy-and mutually corrupting and corrupted by each other, were a melancholy proof of the inefficacy of our former laws, and they were well prepared to despise the new. In order to clear the gaol, and accommodate it to the operation of the new system, these of- fenders were, from time [23] to time, discharged, and as soon as they were at liberty they returned to their old vocation. It is a fact well known, that among all the convicts which first fell under the correction of the new law, scarce a new face appeared. Most of those who were convicted of the two offenses in question, were sentenced to undergo an imprisonment of five, seven or ten years; and had these sentences been strictly enforced, the benefit of the new system would have been apparent, and these crimes would have become rare. Of all offenders these are the most incorrigible. Other offences are seldom repeated: but a person once devoted to any species of theft is seldom reclaimed by any terrors he has undergone or any mercy he has received. Reformation, though not impossible, must be the work of much time. A strict execution of the act was, there- fore, essential to its success. But it unfortunately happened, that they were scarcely convicted before many of them were again loose

PA058 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 140 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 upon the public. Pardons, so destructive to every mild system of penal laws, instead of being thought dangerous, were granted with a profusion as unaccountable as it was mischievous: and escapes, which ought to have been guarded against by the most vigilant care, were multiplied to an alarming degree. Sixty-eight different per- sons were convicted of these offences previous to the year 1790. Of these twenty-nine escaped and thirty have been pardoned-five exe- cuted for capital offences committed after their escape, and one killed in an affray. I doubt whether any one male offender served out the time to which he was condemned by the sentence of the court; and it is certain, that there is not, at this time, in gaol a single person under a sentence pronounced previous to the year 1791. When to these abuses it is added, that the system itself was de- [24] fective in requiring the criminals to be employed abroad, which gave them opportunities for intoxication, and hardened them against shame-that their labor was not equal to that which it is the lot of poverty to endure, while their fare was much better- that there were no places for solitary confinement nor power to in- flict it, and no real increase of punishment for a second offence, we may readily conjecture, that the operations of the system must have been not only impeded but perverted. The defects of the system were corrected in 1790-the execu- tion of it has been diligently attended to by the Inspectors, and the prerogative of pardon, since it has resided in a single Magistrate, is no longer weakly exercised. Our calculations ought, therefore, to be made on the operations of the corrected system during the two last years. From an in- spection of the table, it is evident these crimes have greatly de- creased during that period. The convictions in those two years are, upon an average, considerably less than those in any two years which precede them. But, under all the difficulties which, at first, it encountered, and without allowing for re-convictions which swell the account, let us examine what has been the general effect of the system, on these crimes, since it was first adopted. Referring, therefore, to the table, and excluding the year 1778 in order to make the time pre- vious and subsequent to the act as equal as we can, the account will stand thus: Before the act. Since the act. Convicted, 81 104 Convicted partially, 9 1 Acquitted, 42 20

Total tried, 132 125

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[25] From this statement it appears, that more persons were tried for these offences, while they were capital, than since the punishment has been lessened: and if we allow for re-convictions the difference will be much greater. It is true, the number of per- sons convicted, in the former period, is less than that of those con- victed in the latter: but in this (as well as in the number of par- tial acquittals) I see nothing but the humane struggles of the jury to save the offender from death. At that period the acquittals were more than half the number of the convictions: since the change in our laws, they do not amount to a fourth.-A proof how much the severity of a law tends to defeat its execution! It is probable that the number of these crimes would have been less, had a greater difference been made between their punishment and that of simple larceny. Perhaps it might have a beneficial effect if solitary confinement and coarse fare were a necessary part of the punishment. At present, it forms no part of the sentence on the criminal, but is inflicted, at the discretion of the Inspectors, on "the more hardened offenders." This is so indefinite a description, that this salutary rigor may be either capriciously inflicted or weakly withheld: and, as it is not the certain consequence of the offence, it can be no check upon the mind of the offender. It might be sound policy to make a distinction between the punishment of those who commit these offences, armed with danger- ous and mortal weapons, and of those who do not indicate such violent intentions. Such a distinction prevails in the laws of Con- necticut, and, also, in those of Milan: and I understood from the nephew of the Marquis Beccaria, while he was in America, that [26] beneficial effects had resulted from this discrimination. These crimes are still punished with death in the first instance, when committed by any person, sentenced to hard labor, after an escape : and, also, on the second conviction, if the offender was pardoned for the first. A similar provision is found in the laws of Denmark, where robbery is not in the first instance a capital offence, and where (Mr. Howard assures us) Night Robberies are never heard of.* It is evident, from this examination, that the principle of the new system, properly modified, coincides with the public safety as much as with the dictates of humanity. The happy result of this experiment is an encouragement to proceed still further. I have already observed, that no offenders are so incorrigible as robbers and burglars, and on few crimes could the experiment have been made with so little prospect of success as on these I have been con-

* Howard on Pris. p. 76. Williams on the Northern Gov. 1 vol. p. 353.

PA060 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 142 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 sidering. Succeeding in this, there is little to apprehend from ex- tending it to other crimes, which, though still capital, are not of the deepest dye. COUNTERFEITING THE COIN. BY the act of 1767, the counterfeiting "of any gold or silver coin, which is, or shall be, passing, or in circulation," is made a felony of death without benefit of clergy. This not only compre- hends all current foreign coins, but will embrace those of the United States as soon as they come into circulation. [27] This act is more penal than even the British statutes, for it is not a capital offence in England to counterfeit any foreign coin at present current in that kingdom.* If it be necessary to guard our coin by the terrors of an ignominious death, the act, to be con- sistent, ought to go further. False money made in another state or beyond seas, may be imported or uttered without incurring this punishment. The offence may, therefore, in substance, be com- mitted, and yet the penalty of the law avoided. But there does not appear to be any necessity for so violent a remedy. It is probable this crime will be neither frequent nor dangerous. The perfection of modern coins renders its commission difficult, and, to counterfeit them with success, requires not only time and industry, but a degree of skill which few possess, and which, in this country will always ensure its possessor a respectable livelihood. Most people are now a days sufficiently discerning to distinguish the genuine from false coin: and the Banks, established in this and many of the principal cities in America, form a valuable check upon the circulation of base money. In these it is immediately detected; and, if a quantity appears to be abroad, information of it, and of the marks which distinguish it, is immediately transmitted to every part of the state by means of the public- prints : Add to this, that the practice of making payments by checks or bank notes, now so general in this city (which is the usual mart for vending base money) tends very much to lessen the mischief. There is no longer any danger that false money will shock the public confidence or embarrass the course of dealing between man and man. The [28] monstrous folly of considering this offence as an usurpation of sover- eignty, and, therefore, a species of high treason, is past; and it may now be safely ranked with other base frauds against individuals. The Edict of the Duke of Tuscany considers the coining of false money as grand larceny and punishes it as such.t This crime is

Black. Com. 89. t §. 94.

PA061 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 143 not capital in Massachusetts, nor in Connecticut, nor in Maryland, nor in North Carolina, as far as relates to foreign coin; and to every reflecting mind, which is not still enslaved by ancient errors, the punishment of death must appear to be far beyond the demerits of the offence. Is it wise, or is it just, to confound together dissimiliar crimes, and to involve him who debases a piece of money in the same punishment with him who is guilty of deliberate murder? There is no substantial reason for making this crime capital which does not equally apply to that of forgery. In the present state of society paper negotiations require as much protection as the coin. The latter offence, in general, is more easily committed; and, a single act of forgery, may be more injurious to the individual than many acts of counterfeiting the coin. Yet, we find, the paper of the Banks, promissory notes and bills of exchange sufficiently safe under the mild systems of our laws. It is true various acts of Assembly made it a felony of death to counterfeit and and utter the Continental bills of credit: but it has been already stated, that no beneficial consequences resulted from this severity. Only three persons have been tried in Pennsylvania for counter- feiting the coin since the revolution, and of these two were acquitted. Positive proof of this crime is rarely to be obtained, and the [29] usual circumstances which attend its commission, as they amount to proof of an inferior offence, are seldom admitted by a jury to amount to anything more. From the experience we have had it is not probable, that many will become the victims of the law: but, while it remains in our stat- ute book, it furnishes a precedent for involving, in the same punish- ment, crimes which are similar in their nature and effects. I suspect this offence was overlooked at the time the reform was made in our penal laws, otherwise it would hardly have been continued in the list of capital crimes. Of the acts respecting the crime of counterfeiting bills of credit, loan -office certificates, &c. I shall take no notice, as the offence will scarcely be committed at this day, and the law will become obsolete of itself, if it be not repealed.

RAPE. THE infliction of death for any crime supposes the incorrigi- bility of the criminal. But this offence, arising from the sudden abuse of a natural passion, and perpetrated in the phrenzy of desire, does not announce any irreclaimable corruption. Female innocence has strong claims upon our protection, and a desire to avenge its wrongs is natural to a generous and manly mind. We consult this resentment, rather than our reason, when we punish

PAO 62 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 144 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 this offence with such dreadful severity. The injury is certainly great: yet, it cannot be denied, that much of its atrocity resides in the imagination and is the creature of opinion. Why else do we esti- mate the degree of the offence so much by the rank, the situation, and the character of the injured party? Why does a jury frequently treat this charge so lightly as to acquit against positive and uncon- tradicted evidence? Or why do [30] the laws consider the vio- lation of a female slave of so little moment as to secure the offender from punishment by excluding the only witness who can prove it? * In most cases the violation of the natural right and the real injury to the individual is nearly the same: yet, those who justify the pres- ent severity are obliged to admit, "that it is a crime peculiarly liable to vary in the degree of its atrociousness, according to the circum- stances of the case, and, therefore, peculiarly open to the divine pre- rogative of pardon." f The truth is, that in many instances, the common sense of mankind revolts against the extremity of the pun- ishment, and pardons or acquittals are the necessary consequence. It is these pardons-it is these acquittals-which create the hopes of impunity and rob the law of all its terrors. It has been as strictly executed in Pennsylvania as in most countries : yet, of eighteen per- sons tried since the revolution for this crime, and positively charged, only five have been punished. By a table of capital convictions in Scotland from 1768, to 1782,§ it appears that only one person was convicted of this crime, and that he was pardoned. (i) William Penn considered imprisonment, stripes and hard labour as a punishment adequate to this crime and sufficient to check the commission of it. The Grand Duke of Tuscany prescribes imprison- ment at labor, varied as the circumstances may require. t The Legis- lature of Vermont, so late as the year 1791, has followed the humane exam- [31] ple, and in that state death is no longer inflicted on this offence. If any one, mistaking the end of punishment, and more intent on vengeance than the prevention of the crime, deems this chastise- ment too light, a visit to the penitentiary house lately erected as part of the gaol of Philadelphia, will correct the opinion. When he looks into the narrow cells prepared for the more atrocious offenders

* Act for the gradual abolition of slavery. § 7. t Eden's principles, 238. § Howard on prisons, 485. (i) See NOTE IX [infra, p. 167.] * Section 99.

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-When he realizes what it is to subsist on coarse fare-to languish in the solitude of a prison-to wear out his tedious days and long nights in feverish anxiety-to be cut off from his family-from his friends-from society-from all that makes life dear to the heart- When he realizes this he will no longer think the punishment inade- quate to the offence. ARSON. ARSON is the crime of slaves and children. Its motive is re- venge, and, to a free mind, the pleasure of revenge is lost when its object is ignorant of the hand that inflicts the blow. Twelve persons have been tried for this offence in the last fourteen years: and of these, three were negro slaves-four were children, and two were vagrant beggars. The remaining three were acquitted under circum- stances which made it probable the fire was accidental. This offence may be committed so secretly that it is seldom possible to collect proof sufficient on a charge that is capital. Other crimes are committed in the presence of witnesses, or are attended with circumstances which point out the criminal: but in arson there are no eye-witnesses-the presumptive proof will seldom be violent, and confessions are only to be expected from the ignorance of slaves and children. These confessions (too [32] generally extorted by promises or threats) come before the jury in so questionable a shape, that they are often disregarded. Hence the severity of the punishment, in this case, leads in a peculiar manner to impunity. The proof is so difficult that juries are justified in acquitting, and the objects convicted are such as the Ex- ecutive is prompt to pardon. Of five persons convicted of this crime only one was executed.-This was a negro woman in a distant county. The crime of arson extends only to the wilful burning of a dwell- ing -house, certain public buildings, or a barn having hay or corn therein. Every other species of property may be maliciously de- stroyed by fire, without incurring the forfeiture of life. Hence, ships and other vessels in harbour or on the stocks-hay and grain in stack or barracks-magazines of arms and provisions-store-houses of every description-mills-theatres and distilleries, are not protected by these high terrors of the law: and to burn them is considered merely as a misdemeanor at common law. Here then is a fair oppor- tunity for comparison. Has the milder punishment encouraged these malicious crimes; or, has the terror of death, hung up on high, de- terred offenders from the crime of arson? The following fact will answer the question. Since the revolution twelve persons have been indicted for the crime of arson; and only two for any other species of malicious burning!

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In New Hampshire and Massachusetts this crime is not capital if committed in the day time: nor in Connecticut, "if no prejudice or hazard to the life of any person happen therefrom." To burn public vessels or magazines of provision, in time of war, being a species of treason, is, indeed, capital in that state: but it is not so if the same offence be committed in time of peace. I cannot [33] learn that these distinctions have any effect, or that the lesser offence is more frequent than the greater. Upon the whole, it seems that solitude and hard labor will be a punishment, for this crime, as efficacious and more advantageous to the public, than death. The offender may be reformed and become a useful citizen, and he may be compelled to repair, by his estate or his labor, the injury he has done. This was formerly required in most cases, by the laws of William Penn; but, at present, is swal- lowed up by the legal maxim which merges the private in the public wrong: a maxim, invented by fiscal or feudal ingenuity, to prevent the claims of the injured party from interfering with the forfeiture to the crown and the escheat to the lord.

MALICIOUS MAYHEM, &C. THIS offence is described in the words of the English statute, 22 & 23 Car. II. Ch. 1. commonly called the Coventry act. The sever- ity of this act, which goes considerably beyond all former statutes on the subject, was occasioned by a malicious assault made upon Sir John Coventry, then one of the members of the House of Commons. Laws thus made upon the spur of the occasion, and under the emo- tions of indignation, are seldom founded upon the permanent prin- ciples of justice or policy. This act has remained a dead letter in Pennsylvania. No person has been prosecuted under it, nor can I learn that the crime has ever been committed. I attribute this to the state of manners, and by no means to the nature of the penalty. On the contrary, as no prosecu- tion has called it into public notice, it is probable that very few people know that such an act exists. [34] New Hampshire, in legislating on this subject, has set us an example of justice and moderation. There the penalty is fine and imprisonment not exceeding seven years; and there, as well as in Pennsylvania, the offence is unknown. The same penalty is pre- scribed by the laws of the United States. Even in Georgia, where the attention of the Legislature has been called to it so late as 1787, the punishment, for the first offence, is the pillory and fine not ex- ceeding one hundred pounds, half of which goes to the injured party. In Virginia and North Carolina, though it be a felony, it is not ousted, as with us, of the benefit of clergy.

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MAN -SLAUGHTER BY STABBING. The act of 1 Jac. I. usually called, the statute of stabbing, by which this offence was ousted of clergy, was extended to the province by an express reference to it in the act of 1718. This statute, which was levelled against a temporary mischief prevalent in England at that day-in which so much ignorance of the common law is dis- covered-which is so rigorous in its literal meaning as to involve the cases of chance medley and innocent mistake-and so obscure and ill drawn that the Judges have been divided on the meaning of almost every important word in it-ought never to have been made a perma- nent law of Pennsylvania. Its severity, however, has been so miti- gated by judicial construction, that the soundest opinion now seems to be, "That the party indicted upon it ought not to be convicted, unless the fact, upon evidence, turns out to be murder at common law." * For this reason it has not been usual, for some years past, to indict [35] any person on this act in Pennsylvania; and, for the same reason, it ought not to remain among our laws. It is use- less when rightly explained: it may be the instrument of mischief when it is perverted or misunderstood.

MURDER. IT has been a question which has divided the philosophers of Europe, whether it be lawful, in any case, to take away the life of a criminal: and the negative has been advanced and ingeniously sup- ported in our own country. f Great names are arranged on the dif- ferent sides of this question: but, waving useless refinement, it seems to resolve itself into that which we are considering, viz. whether it be necessary to the peace, order and happiness of society. Murder, in its highest degree, has generally been punished with death, t and it is for deliberate assassination, if in any case, that this punishment will be justifiable and useful. Existence is the first blessing of Heaven, because all others depend upon it. Its protection is the great object of civil society and governments are bound to adopt every measure which is, in any degree, essential to its preser- vation. The life of the deliberate assassin can be of little worth to society, and it were better that ten such atrocious criminals should suffer the penalty of the present system, than that one worthy citizen should perish by its abolition. The crime imports extreme depravity and it admits of no reparation.

* Foster, 301-2. t "Observations on the injustice and impolicy of punishing murder with death," by Dr. Rush. $ See NOTE X [infra, p. 168.]

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"But why should capital punishments have a more powerful effect on these than on other offen- [36] ders?" I have already observed, that the fear of death is universal and impressive : and that its beneficial effects are defeated principally by the hopes of impunity. We have had no experience what its effect will be when it is applied to a single crime of such a nature as to exclude the hopes of pardon. In such a case, where an execution would be as rare as it is dreadful, the wholesome terror of the law would be wonderfully increased: and this is one reason why a less punishment should be adopted for other crimes. If we seek a punishment capable of impressing a strong and lasting terror, we shall find it in an execution rarely occurring- solemnly conducted (k)-and inflicted in a case, where the feelings of mankind acquiesce in its justice and do not revolt at its severity. But while I contend that this is the most powerful curb of hu- man governments, I do not affirm that it is absolutely necessary, or that a milder one will be insufficient. It is possible that the further diffusion of knowledge and melioration of manners, may render capi- tal punishments unnecessary in all cases : but, until we have had more experience, it is safest to tread with caution on such delicate ground, and to proceed step by step in so great a work. A few years experi- ence is often of more real use than all the theory and rhetoric in the world. One thing, however, is clear. Whatever be the punishment inflicted on the higher degrees of murder it ought to be widely differ- ent from that of every other crime. If not different in its nature at least let there be some circumstance in it calculated to strike the imagination-to impress a [37] respect for life-and to remove the temptation which the villain otherwise has to prevent the dis- covery of a less crime by the commission of a greater.(/) But while I speak thus of deliberate assassination, there are other kinds of murder to which these observations do not apply: and in which, as the killing is in a great measure the result of accident, it is impossible the severity of the punishment can have any effect. The laws seem, in such cases, to punish the act more than the inten- tion: and, because society has unfortunately lost one citizen, the executioner is suffered to deprive it of another. In common understanding the crime of murder includes the cir- cumstances of premeditation. In the laws of William Penn, the tech- nical phrase malice aforethought, was avoided; and "wilful and pre- meditated murder" is the crime which was declared to be capital. Yet murder, in judicial construction, is a term so broad and compre- (k) See NOTE XI [infra, p. 172.] (1) NOTE XII [infra, p. 172.]

PAO 67 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 149 hensive in its meaning as to embrace many acts of homicide, where the killing is neither wilful nor premeditated. "A. shooteth at the poultry of B. and, by accident, killeth a man; if his intention was to steal the poultry it will be murder: but if done wantonly it will be barely man-slaughter." Again, " A parker found a boy stealing wood in his masters ground : he bound him to his horse's tail and beat him. The horse took fright, run away and killed the boy. This was held to be murder." * In the latter case there was no design to kill; in the former not the least intention to do any bodily harm. I am sensible how delicate a step it is to break in upon the defini- tion of crimes formed by the [38] accumulated care of ages; but, when we consider how different, in their degree of guilt, these offences are from the horrid crime of deliberate assassination, it is difficult to suppress a wish, that some distinctions were made in favor of homicides which do not announce extreme depravity. The defect may be, in a degree, supplied by the prerogative of pardon: yet it shocks the vulgar opinion and lessens the horror of the crime whenever a murderer is pardoned. It has been said, "Ye shall take no satisfaction for the life of the murderer :" yet it is often necessary, as the law stands, to interpose the prerogative of mercy. Even in England, where restraints are laid upon its exercise in cases of murder, it ap- pears, by tables * already referred to, that, of eight -one sentenced to die for this crime, seven were pardoned,-in Scotland seven out of twenty,-and in Pennsylvania about one-fourth of the whole number convicted. Not one of these, thus pardoned, has ever been prosecuted, to my knowledge, for any other crime. In the report of the committee of revision to the General As- sembly of Virginia, a reform is suggested so far as relates to homi- cide accidentally happening in consequence of a felonious or unlaw- ful act: and it is proposed to be enacted, "That, in future, no such case shall be deemed man -slaughter unless man -slaughter were in- tended, nor murder unless murder were intended." Though assassination has been rare in Pennsylvania, it cannot be concealed that homicides have been very frequent. It appears by the table annexed, that, in the last fourteen years, there have been tried for murder and manslaughter no less than one hundred persons, of whom one half were convicted, and thirty-four of these were for mur- [39] der. In the same space of time there were but twenty convicted of this latter crime in Scotland. Even in the city of Lon- don, nearly twice as populous as this state, there were but nineteen persons executed for murder from 1771 to 1783, a space of twelve

* Foster. 259, 292. * See Jansen's Tables in How. Lazar. p. 483-5.

PA068 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 150 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 years.* In fourteen years twenty-six have been executed in Pennsyl- vania. There is one species of murder which deserves attention. It is that of bastard children. The horrid severity of the statute of James I, introduced here, had long been mitigated by a humane prac- tice of requiring some proof that the child was born alive. This practical construction is now legally authorized, and it is necessary to give, some "probable presumptive proof of that fact, before the strained presumption that the child, whose death is concealed, was therefore, murdered by its mother, shall be sufficient to convict the party indicted." But does it necessarily follow that a child, which is born alive, must be destroyed merely because its death is concealed? May not the child perish from want of care, or skill, in so critical a moment? A helpless woman, in a situation so novel and so alarming-alone, and, perhaps, exhausted by her sufferings-may she not be the in- voluntary cause of her infant's death? and, if she afterwards con- sults a natural impulse to conceal her shame, is not the penalty be- yond the demerit of the offence? These reflections naturally arise in the hearts of jury -men; they regard these unfortunate creatures with compassionate eyes, and I have never known them convict un- less there were marks of violence, or some circumstances that would amount to proof of murder at common law. The [40] punish- ment is ever before their eyes, and they tremble at the consequences of an irretrievable mistake. The presumptions that the child was born alive have been, not only probable but violent, and yet the act has not been enforced. There have been fifteen women tried for child -murder since the year 1778; three only convicted, and, of these, two were pardoned. Where a positive law is so feebly enforced, there is reason to suspect that it is fundamentally wrong. The error of this act is apparent. Proof of a crime is that which satisfies our minds of the truth of the charge. If it does not produce a belief of the fact laid in the indictment it is not proof of it-and this belief is neither in our power nor that of the law. It is absurd, therefore, to say, that this or that circumstance shall be proof of the murder. To make the concealment a capital crime in one thing; but, to say, that when the concealment is proved, the jury must, at all events, believe the murder to be committed-is a very different one. In Denmark, women guilty of child -murder are no longer pun- ished with death: but are condemned to work in spin -houses for life, and to be whipped annually, on the day when, and the spot where, the

* Howard, p. 484-5. t Act to reform the penal laws. § VI.

PAO 69 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 151 crime was committed. "This mode of punishment, Mr. Howard as- sures us,* is dreaded more than death, and since it has been adopted has greatly prevented the frequency of the crime." An attempt was made to introduce a similar alteration in the laws of Sweden. It was recommended by Gustavus III. in his speech at the opening of the Diet of 1786. But this innovation was warmly opposed by the Clergy: and the patriots to whose consideration it was referred were unani- [41] mous in advising the representa- tives of the nation to continue the punishment of death.§ There is a provision in the laws of New Hampshire, which is founded in good sense, and which, while this offence remains capital, it is desirable could be introduced here. There, the concealment is treated as a crime punishable by fine, imprisonment or public infamy, according to the circumstances of the case; while the proof of the murder remains as at common law. If, as is usually done, the indict- ment charges both crimes, the jury may acquit of the murder and find the prisoner guilty of the less offence.

MAN -SLAUGHTER. THOUGH man -slaughter is not, in common acceptance, a capital crime, I mention it for the sake of making a single observation re- specting its punishment. Man -slaughter, as explained in our law-books, is exceedingly comprehensive in its nature. While its deepest shade partakes of the hue of murder, its lightest is faintly tinged with the feeble colors of carelessness and inadvertence. The punishment ought, therefore, to be such as might be varied according to the circumstances of the case : or, the different degrees of the crime should be ascertained and marked with a correspondent penalty. The former is the case in all the New England states, and the court may inflict an infamous punishment, or fine or imprisonment, or all or either of these as the degree of guilt requires. This was formerly the law in Pennsylva- nia; but now every person convicted of man -slaughter is sentenced to [42] be burnt in the hand-to find security for his good be- haviour during life-and to be fined and imprisoned: and for the second offence to be hanged. Beneficial effects resulted from an act of Assembly, passed in the year 1780, which authorized the Attorney General, with the leave of the court, to proceed against any person charged with treason, as

* Howard on prisons, p. 74. § See Journey thro' Sweden translated by Radcliffe. Catteau's View of Swed. p. 159.

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PETIT TREASON. THIS crime, which consists in a wife's killing her husband or a servant his or her master, is punished differently from the other species of murder. A man convicted of it is to be drawn and hanged, and a woman to be drawn and burnt. Is not this distinction unjust, and this mode of inflicting death, handed down from ferocious ages, injurious to society from it apparent,* if not real, barbarity? In many of the states, as well as by the laws of Congress, it is expressly enacted, That death shall always be inflicted by hanging the offender by the neck. We have no such act in Pennsylvania. The distinction between petit treason and other kinds of mur- der is abolished by the laws of Massachusetts. Neither the enormity of its guilt, nor the supposed allegiance of the party, require a dis- tinction more than the crime of parricide which is punished as simple murder. [43] HIGH TREASON. HIGH TREASON, when properly limited, has generally been considered as the highest crime and as involving in it the guilt of murder. In its true meaning it is an attack upon the sovereignty and existence of the nation. By the acts of Congress and of several of the states * it is prop- erly confined to the levying war and adhering to enemies, and is described in the words of the statute of Edward III:-words, whose precise extent has been settled by the judicial construction of more than four centuries. In Pennsylvania the description of this crime is more diffuse: and the act of 1782 is sufficiently severe which makes it high treason to set up a notice inviting the people to meet for the purpose of erecting a new and independent government within the bounds of the state, or even to attend at any meeting for such a purpose.

* In practice, it is usual to strangle the woman before her body is committed to the flames. See NOTE II [infra, p. 158]. * In New Hampshire "to conspire to levy war" is high Treason: This, if applied to the constructive levying of war, outdoes the severity of the British Government.

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CONCLUSION. IT is from the ignorance, wretchedness or corrupted manners of a people that crimes proceed. In a country where these do not prevail moderate punishments, strictly enforced, will be a curb as effectual as the greatest severity. A mitigation of punishment ought, therefore, to be accompanied, as far as possible, by a diffusion of knowledge and a strict execution of the taws. The former not only contributes to enlighten, but to meliorate the manners and improve the happiness of a people. [44] The celebrated Beccaria is of opinion, that no govern- ment has a right to punish its subjects unless it has previously taken care to instruct them in the knowledge of the laws and the duties of public and private life. The strong mind of William Penn grasped at both these objects, and provisions to secure them were interwoven with his system of punishments. The laws enjoined all parents and guardians to instruct the children under their care so as to enable them to write and read the scriptures by the time they attained to twelve years of age: and directed, that a copy of the laws (at that time few, simple and concise) should be used as a school book.* Simi- lar provisions were introduced into the laws of Connecticut, and the Select Men are directed to see that "none suffer so much barbarism in their families as to want such learning and instruction." The children were to be "taught the laws against capital offences," I. as those at Rome were accustomed to commit the twelve tables to mem- ory. These were regulations in the pure spirit of a republic, which, considering the youth as the property of the state, does not permit a parent to bring up his children in ignorance and vice. The policy of the Eastern states, in the establishment of public schools, aided by the convenient size and incorporation of their town- ships, deserves attention and imitation. It is, doubtless, in a great measure, owing to the diffusion of knowledge which these produce, that executions have been so rare in New England; and, for the same reason, they are comparatively few in Scot- [45] land.* Early education prevents more crimes than the severity of the crimi- nal code.

Laws 1682. ch. 60. 1-2. t Laws Conn. p. 20. Scotland is nearly twice as populous as London; yet, by the tables referred to already, it appears, that about thirty criminals are executed, yearly, in London, while not quite four is the yearly average in Scotland. The difference between those capitally convicted, in two places, is much greater. How. p. 9. 483-5.

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The constitution of Pennsylvania contemplates this great object and directs, That "Schools shall be established, by law, throughout this state." Although there are real difficulties which oppose them- selves to the perfect execution of the plan, yet, the advantages of it are so manifest that an enlightened Legislator will, no doubt, cheer- fully encounter, and, in the end, be able to surmount them. Secondly-Laws which prescribe hard labor as a punishment should be strictly executed. (m) The criminals ought, as far as pos- sible, to be collected in one place, easily accessible to those who have the inspection of it. When they are together their management will be less expensive, more systematic and beneficial-Their treatment ought to be such as to make their confinement an actual punishment, and the rememberance of it a terror in future. The labor, in most cases, should be real hard labor-the food, though wholesome, should be coarse-the confinement sufficiently long to break down a dispo- sition to vice-and the salutary rigor of perfect solitude, invariably inflicted on the greater offenders. Escape should be industriously guarded against-pardons should be rarely, very rarely, granted, and the punishment of those who are guilty of a second offence should be sufficiently severe. The reformation of offenders is declared to be one of the objects of the Legislature in reducing the punishment-But time, and, in some cases, [46] much time, must be allowed for this. It is easy to counterfeit contrition; but it is impossible to have faith in the sudden conversion of an old offender. On these hints I mean not to enlarge-but they point to objects of great importance, which may deserve attention whenever a further reform is attempted. The conclusion to which we are led, by this enquiry, seems to be, that in all cases (except those of high treason and murder) the punishment of death may be safely abolished, and milder penalties advantageously introduced-Such a system of punishments, aided and enforced in the manner I have mentioned, will not only have an auspicous influence on the character, morals, and happiness of the people, but may hasten the period, when, in the progress of civiliza- tion, the punishment of death shall cease to be necessary; and the Legislature of Pennsylvania, putting the key -stone to the arch, may triumph in the completion of their benevolent works. (n)

(m) See NOTE XIII [infra, p. 173.] (n) See NOTE XIV [infra, p. 174.]

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NOTES AND ILLUSTRATIONS NOTE I. Page 5. IT was a favorite opinion of Dr. Jebb, "That no effort is lost," and the success which has attended these endeavours to moderate the rigor of the Criminal Law, tends to confirm it. A slight review of the effects which the dissemination of these principles have had upon the governments of Europe will not be foreign to the object of this work, and must be consolatory to the friends of humanity. Forty years ago the execrable practice of torture was general on the continent of Europe, and it was considered to be as necessary in the administration of justice as capital punishments are at present. Against this cruel institution all the powers of reason and ridicule were exerted: and the folly as well as the wickedness of it has been so happily exposed, that it has either been wholly sup- pressed, or has become so disreputable as seldom to be exercised. The King of Prussia set the example of abolishing it in Germany, and the Duke of Tuscany in Italy; and the example was soon fol- lowed in Saxony and in Poland. It was suppressed throughout all Russia in 1768, though not without some opposition from the preju- dices of the people. In Geneva it has not been used since the year 1756; and it was totally abolished in Sweden in 1773. Maria Theresa tacitly suppressed, and the late Emperor Joseph, formally prohibited it in the Austrian dominions. Louis XVI. about the same time restricted its exercise in France. The revolution has utterly abolished it in that country as well as in Avignon, where it was exercised with so much severity that the goaler there informed Mr. Howard, in 1786, that he had seen drops of blood mixed with sweat on the breasts of some who had suffered the torture. Even in Spain the practice though not formally abolished, is generally reprobated, and in some of the provinces is no longer used. The Chevalier de Bour- goanne informs us, that a few years ago an ecclesiastic named Castro, undertook a formal apology for it; but that his book was received with universal indignation and was fully refuted by a gentleman of the law, who, in fact, only expressed the moderate sentiments of the first tribunals of the kingdom, and of the reason- able part of the nation. Those, whose imaginations have realized the scenes which were formerly exhibited in a torture chamber, will consider the destruction of this monster as no inconsiderable cause of triumph. See Bourg. Tray. 1 vol. 286-7. Howard on Pris. 154 &c. Lazaretto's. 66. 53. 2 Coxe's Tray. 83. 392. 4. Biblioth. Philos. 205. Though I have selected this striking instance, it is but a small part of the effects produced by this diffusion of light and truth.

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To this is to be attributed the general reformation in the civil and criminal code of Russia. The celebrated "Instructions" of the Empress, written with her own hand, and deposited with so much care in the gilded vase at Petersburg-What are they, but the prin- ciples scattered through the writings of the philosophers of Europe, and often expressed in their very words? It was the same cause which produced the reformation of the criminal law at Vienna in 1785. "The Court (says Baron Reisbach, speaking of the Codex Theresianus) became ashamed, at the time when all Europe was making an outcry about humanity, the abolition of capital punish- ments, &c. of a statute book which had nothing in it but halters, gibbets, and swords"-and a reform was immediately begun. The amelioration introduced into the laws of Sweden by Gustavus III. begin to be generally known.-We now perceive in that country "the character of a government which listens to the voice of humanity;" and it is easy to trace the source of this reform to those philosophical writings whose maxims were so strongly impressed on his mind, that he did not forget them in the last moments of his life. As to Tuscany, it is acknowledged, that the abolition of capital punishments and the whole system of Leopold, was introduced with the design of putting the principles of Beccaria to the test of experiment. In Spain, the triumphs of reason have not been wanting. Various steps have been taken under the auspices of Count d' Aranda, to narrow the Jurisdiction and humanize the proceedings of the inquisition, and with such success, that some years ago there was an expectation "that the moment was at hand when this hydra, which philosophy had condemned long before, was to be destroyed." -Attempts were also made in the year 1783 to reform the crimi- nal law of the other tribunals of the kingdom. The council of Castile proposed this, and a committee was appointed to carry the proposal into effect. But what has been the result I have not been able to learn. England contenting herself with the superior wisdom, humanity, and justice of her laws in all respects but one, and too fond of "the ancient order of things," has alone remained stationary. The nation indeed is fully sensible of the evil which attends a multitude of sanguinary laws and the government itself begins to be alarmed with the magnitude of the mischief. Judge Blackstone was active in prosecuting a reform, and Lord Ashburton, it is said, was pre- vented by his death from bringing forward in parliament a plan for that purpose. A disposition to establish penetentiary houses has been discovered, and this rational expedient will probably be adopted when the Botany Bay scheme has been sufficiently tried.

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The fermentation of the public mind in Europe excited by greater objects will prevent for a while any attention to this sub- ordinate subject: but a reform in the government will in the end hasten that which is so much wanted in the criminal law. It is impossible that error can long resist the gentle, but continued im- pression of reason. The stroke of truth on public prejudice will be finally irresistible. It resembles that of a grain of sand falling on unannealed glass. Feeble as it seems to be-and slow and invisible as its operations are, no human power can prevent its effects, or preserve from destruction the object on which it falls. See Reisbach's Tray. 1 vol. p. 106. Bourg. 1 vol. 320. 1. 186. Jebb on Prisons. Parl. Regist. vol. 18. p. 521.

NOTE II. Page 9. [An increase of punishment may suddenly check, but does not in the end diminish the number of offenders.]-This principle is well illustrated by Montesquieu. To the facts adduced by him in support if it, the following may be added. In 1752, the British parliament passed an act for the better preventing the horrid crime of murder; by which, in order "to add further terror to the pun- ishment of death," it was directed that the body of the criminal should be delivered at Surgeons Hall, to be dissected and anatomized. This expedient, it is said, carried some terror with it at first, but, we are assured, that this prejudice is now pretty well worn off. 1 vol. Wenderb. View, p. 78. This is confirmed by Sir S. T. Jansen, who on comparing the annual average of convictions for 23 years previous and subsequent to that statute, found that the number of murders had not all decreased. See his Table in Howard's Lazar. I am sorry to perceive that this useless, and perhaps pernicious, expedient has been introduced into the laws of the United States. An anatomical professor might have found reasons for its adoption, but the single object of the legislature was or ought to have been to prevent the crime. See Debates Cong. 7 April 1790. Not wholly foreign to this subject is the following striking passage in the Rights of Man : "It may, perhaps be said, that it signifies nothing to a man what is done to him after his death: but it signifies much to the living. It either tortures their feelings or hardens their hearts; and in either case it teaches them how to punish when power falls into their hands. Lay then the axe to the root, and teach governments humanity. It is their sanguinary punishments which corrupt mankind." Rights of Man, 1 Part p. 33.

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NOTE III. Page 9.

Facts from which principles are to be deduced ought to be well established. I am therefore obliged to observe that Montesquieu appears to have taken up that alluded to in the text, without suffi- ciently examining into its truth. The passage in the Spirit of Laws is thus: "The people of India are mild, tender, and compassionate. Hence their legislators repose great confidence in them. They have established very few punishments, and these are not severe nor rigorously executed." This is founded on the authority of Le P. Bouchuel in his collection of edifying letters. A similar account is given by other European writers. The authors of "Travels into Europe, Asia, and Africa," published in 1782, says, "The Hindoos are naturally the most inoffensive of mortals. There is a wonderful mildness in their manners, and also in their laws, by which the murder of a human creature and of a cow, (one of the sacred ani- mals) are the only crimes which are punished with death." 1 vol. p. 332. These accounts are very different from those of the ancients, who represent the punishment of crimes in India as extremely rigorous: and since the Bramins have been prevailed upon by the address of Mr. Hastings, to communicate the Hindoo code to the world, we find that the ancients were right in their representations. There is a profusion of capital punishments prescribed in that code, and the cruel manner of inflicting them, bears the stamp of remote and barbarous ages. This difference is, in some measure reconciled, by Mr. Halhed, the translator of the Hindoo code, in his preface to that work. Speaking of the chapter on theft, his words are, "This part of the compilation exhibits a variety of crimes punished by various modes of capital retribution, contrary to the general opinion adopted in Europe, that the Gentor administration was wonderfully mild and averse to the deprivation of life. One cause for this opinion might be, that since the Tartar Emperors became absolute in India, the Hindoos, (like the Jews in captivity) though in some respects permitted to live by their own rules, have, for reasons of government, been in most cases prohibited from dying by them." p. 62. Be this as it may, little can be inferred from the example of so peculiar a people, who are more governed by manners and religion, than by laws; otherwise it might be observed, that those of the superior cast or tribe, are expressly exempted from capital, though they are subjected to other punishments: and there is no good ground to believe, that this exemption ever corrupted the heart or tempted to the commission of crimes. See Spirit Laws. B. 14. ch. 15. Raynel vol. 1. Sketches Hist. Hindost. 300. 1. Hindoo Code. 1777. passim. Roberts. Ind. 263.

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In China, where the population is computed at 60 millions, a strict administration of justice is said to supersede the necessity of many capital punishments. We are told that no crimes are pun- ished with death, except treason and murder; and that in this ex- tensive country, not more than 10 persons are executed in a year. Sullivans Philos. Raps. 156. There is reason to believe that the laws of China are at once mild and efficient : But the accounts we have of that people are imperfect and contradictory. See on this subject Montes. B. 19 ch. 17. B. 6. ch. 9. Duhalde's Hist. vol. 1. Encyclop. art. China. NOTE IV. Page 10. Blackstone in his Commentaries, Montesquieu, and others, cite with approbation the conduct of the Empress Elizabeth, who upon her accession to the throne of Russia, in 1741, made a vow that no one should be put to death during her reign. But as there were no fixed and ascertained punishments substituted in the room of death, and as that defect was often supplied in that arbitrary gov- ernment by the infliction of capricious and cruel tortures, it seems rather to have been a weak affectation of clemency, than a bene- ficial reform: and it was not successful in the prevention of crimes. See note X. The present Empress proceeded with more wisdom, In 1768 she convoked an assembly of deputies from all parts of the Empire, and laying before them her "Instructions," which con- tain an epitome of the principles advanced by the best writers on this subject, has by their assistance given to the nation a com- plete code of civil and criminal laws, the first part published in 1775, the latter in 1780. By these the penalty of death is abolished in all cases but that of treason: and definite and certain punishments are prescribed for every offence. Some of these are of such a nature, that humanity has gained little by the change: but in general the beneficial effects of the new system are very evident. That empire has of late been an object of attention to intelligent travellers, and we have as much authentic information of the in- ternal state of Russia as of other European countries. Upon an attentive examination of their accounts, I do not discover, that the suppression of capital punishments has in any degree tended to encourage crimes: on the contrary, that country is constantly in- creasing in civilization and happiness, and the people are as secure in their persons and property, as they were under the bloody code which formerly prevailed. There have been no complaints of the inefficacy of the new regulations as there were of those under the administration of Elizabeth, and before the establishment of the present system.

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The severity with which the punishment of the Knoot is some- times inflicted on atrocious criminals, may be thought necessary on account of the remaining barbarism of a part of the people-or may arise from a defective execution of the laws on smaller offences, and particularly from what Mr. Howard tells us, p. 86. That in Russia there is little or no attention paid to the reformation of prisoners. Yet when we consider that under all these defects,-in so extensive a country-where the population is computed at 22 millions of people, and a considerable part of those still rude-the government is able to repress crimes (except in a single case) without the terror of death, we must admit that it is seldom neces- sary, and ought rarely to be inflicted. See 4 Blacks. 18. 1 Coxes Tray. 521. 2 ditto. 77-93. 217. William's View &c. 2 vol. 255.

NOTE V. Page 10. As the example of Tuscany appears to be the most instructive one I meet with, and is generally cited as conclusive in support of these principles-I have endeavoured to ascertain the fact with as much accuracy as possible. General Lee, who viewed the different governments of Europe with the eye of a philosopher, and whose residence at Vienna fur- nished him with the best means of information gives us this account: "When the present Grand Duke acceded to the Ducal throne, he found in Tuscany the most abandoned people of all Italy, filled with robbers and assassins. Every where for a series of years previous to the government of this excellent Prince were seen gallows, wheels, and tortures of every kind; and the robberies and murders were not at all less frequent. He had read and admired the Marquis of Beccaria, and determined to try the effects of his plan. He put a stop to all capital punishments, even for the greatest crimes; and the consequences have convinced the world of its wholesome- ness. The galleys and slavery for a certain term of years, or for life, in proportion to the crime, have accomplished what an army of hangmen with their hooks, wheels, and gibbets, could not. In short, Tuscany from being a theatre of the greatest crimes and villanies of every species, is become the safest and best ordered state of Europe. Lee's Memoirs, p. 53. Dr. Moore, whose writings have so happily united profound observation with amusing bagatelle, imputes the frequency of Murder in Italy to the laxity of the police, the number of sanctuaries, and the ease with which pardons are obtained-that is, to the hopes of impunity. "As soon, say he, as asylums for such criminals are abolished, and justice is allowed to take its natural course, that foul stain will be entirely effaced from the national character of

PA080 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 162 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 the modern Italians. This is already verified in the Grand Duke of Tuscany's dominions. The edict which declared that churches and convents should no longer be places of refuge for murderers,- (and the same edict abolished the penalty of death)-has totally put a stop to the stilleto; and the Florentine populace now fight with the same blunt weapons that are used by the common people of other nations." Vol. 4. Lett. 43. To these might be added the testimony of de Archenholtz, and other writers: but the most direct and satisfactory evidence that the abolition of capital punishments has not impaired the public safety, is derived from the edict of 1786. This was the completion and formal establishment of a system which before that period had been considered as an experiment. In the introduction, the Grand Duke states, that on his accession he began the reform, by moderating the rigor of the old law, and abolishing the pains of death : and that he had waited until "by serious examination and trial of the new regulations," he should be able to judge of their tendency. He then proceeds : "With the utmost satisfaction to our paternal feelings, we have at length perceived, that the mitigation of punishments, joined to the most scrupulous attention to prevent crimes, and also a great dispatch in the trials together with a certainty and suddenness of punishment to real delinquents, has, instead of increasing the number of crimes, considerably diminished that of the smaller ones, and rendered those of an atrocious nature very rare: we have, therefore, come to a determination not to defer any longer the reform of the said criminal laws." These well established facts go far to prove that a strict admin- istration of justice is sufficient to repress crimes without a severity of punishment: and if we contrast the situation of Tuscany with that of the rest of the Italian states or other countries, where sanctuaries abound, it will establish the converse of the proposition, and prove that it is the impunity of the criminal alone which gov- ernments ought to dread. How frequent assassinations have been in Italy is well known: and Mr. Townsend informs us, that in consequence of this impunity they abound in many parts of Spain. "In the last sixteen months, says he, they reckon seventy murders (in Malaga) for which not one criminal has been brought to justice; and in one year, as I am credibly informed, 105 persons fell in the same manner." 3 vol. p. 18. NOTE VI. Page 10. [The source of all human corruption lies in the impunity of crimes, not in the moderation of punishments.] The soundness of this principle may be demonstrated by the example of other Euro-

PA081 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 168 pean countries, as well as of Russia and Tuscany; and will be further illustrated if we contrast their situation with that of England. It appears that the severity of the ancient criminal laws in Sweden has been of late so greatly mitigated, that all writers agree, they are now remarkable for the moderation of their punishments. We learn from Mr. Coxe, that many offences which in other countries are considered as capital, are there chastised by whipping, condem- nation to bread and water, imprisonment and hard labour. More than 120 strokes of the rod are never inflicted, nor is a criminal sentenced to bread and water longer than 28 days. 2 vol. 392. But Mr. Catteau, who published his "View of Sweden" so late as 1789, resided long in that country, and had the best sources of information. "The criminal laws (says this elegant writer) which are followed by the Swedish tribunals, display a striking character of humanity and justice; and for this they are indebted principally to the reformation they have undergone in the present reign. These laws establish an exact proportion between the crime and the punish- ment: that of death is not yet entirely abolished; but in several cases, banishment, whipping, paying a fine, and labouring at the public works, are substituted in its stead. Criminals condemned to die, are generally beheaded : severer punishments are appointed for those crimes, which shock humanity by their atrocity; but of these there are few instances in Sweden." P. 158. So far is this mildness of the laws from injuring the public wel- fare, that the character of the whole nation seems to be meliorated by suppressing the frequency of capital punishments. "Though Swe- den is covered with rocks, woods, and mountains, its inhabitants are mild and peaceable. Theft, murder, robbery, and atrocious crimes in general, are very uncommon amongst them; and even in war they do not appear to be sanguinary." lb. p. 325. In Demmark, as has been already mentioned, robbery is never punished with death, except when committed by a convict who has escaped from the public labour, to which he was condemned. But the administration of justice is strict; and the consequence is, that robberies, burglaries, and other gross crimes, are very rare, even in the capital. "Night robberies, says Mr. Howard, are never heard of in Copenhagen." Pris. p. 76.-Mr. Williams in his View of the Northern Governments mentions the same fact and attributes it "to the good police and the difficulty of escaping out of the island." 1 vol. p. 353. What is this but acknowledging that it is the certainty and not the severity of the punishment which prevents offences! In Vienna, the late Emperor Joseph began the reform, not by abolishing the penalty of death, but by an universal requisition to

PAO 82 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 164 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 the judges to be mild in their sentences, and never to inflict capital punishments without necessity. This mode of submitting the guilty to the descretion of the judges (which now prevails in Maryland, in most cases of felony, without clergy, and formerly did in New Jersey, in that of horse -stealing) seems liable to many objections. Moderate penalties, however, were by this means generally intro- duced at Vienna; and it is a fact well authenticated, that aided by a strict police, they have been found sufficient. Atrocious crimes are seldom committed. Reisb. Tray. II. vol. p. 106. The punishment of hard labour, which is the correction inflicted (and inflicted with great mildness) upon all crimes in Holland, except those of a very high degree, is attended with the most beneficial effects. These result principally from the excellent management which prevails in the Rasp and Spin Houses. Mr. Howard paid par- ticular attention to these wise and benevolent institutions, and he infoims us, that many have been reformed, and have come out of the Rasp Houses sober and honest; and that some have even chosen to continue to work in them after their discharge. The great object attended to in these bettering houses (as they are very properly called) is to reclaim and reform the criminal; and the consequence is, that by checking the young offender in his first attempts, gross crimes are prevented. Accordingly we find that executions are very rare, the annual average in all the United Provinces, being from 4 to 6. In Amsterdam, which contains above 250,000 people, there were but six persons executed in the twelve years preceding 1787. I find that there were in the same time no less than 572 persons hanged or burnt, in London and Middlesex; and of these at least three fourths were under twenty years of age. Even the smaller offences do not greatly abound in Holland: and the success of these mild in- stitutions confirms the great principle which is the motto of this work. See the Tables in How. Laz. p. 256, 7, 8. How. on Pris. p. 66. 45. do. Laz. 74. r8 Parl. Reg. 522. Let us now examine the situation of England where an opposite principle is adopted, and where the terror of death is on all occasions resorted to as the surest means of preventing crimes. Blackstone in his Commentaries stated the number of capital crimes, (that is, of felonies ousted of clergy) at 160. Since that time they seem to have increased: for in 1786, Capel Loft enumerates and states them as follows : Felonies without clergy 176 Felonies within clergy 65. Jebb on Pris. 96.

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Amidst this multitude of sanguinary laws, atrocious crimes are very frequent; and the severity of the punishment, by being familiar, is no longer an object of terror, and by exciting hopes of impunity, has become the parent of crimes. "I cannot tell, (says Dr. Gold- smith) whether it is from the number of our penal laws or the licen- tiousness of our people, that this country should shew more convicts in a year than half of the dominions of Europe united." Wender - born, an intelligent German, who lately visited England, assures us, that the punishment of death is more frequently inflicted in Eng- land than in all Europe together, in the same space of time. Hence it is, that executions lose all their terrors which attend them in other countries. I. vol. p. 75. The author of Thoughts on Executive Justice, thus describes the situation of England in 1785: "No civilized nation, that I know of, has to lament, as we have, the daily commission of the most dangerous and atrocious crimes; insomuch that we cannot travel the roads, or sleep in our houses, or turn our cattle into the fields, without the most imminent danger of thieves and robbers. These are increased in such numbers, as well as audaciousness, that the day is now little less dangerous than the night." P. 4. One of the English prints, 9 November 1784, says, "If robbers continue to increase as they have done for some time past, the number of those who rob will exceed that of the robbed." These representations are confirmed by the declarations of the Solicitor General and Mr. Townsend, in the house of commons in the same year. They affirm, that in the course of the winter, every day furnished some fresh account of daring robberies, or burglaries being committed; that few persons could walk the streets at night, without fear, or lie down in safety in their beds; for that gangs of 6, 8, 10, or 12 persons together, made it a practice to knock at doors, and immediately to rush in and rob the house. 18 Parl. Reg. p. 83. 521. Compare this with the situation of Copenhagen, where night robberies are never heard of." The number of persons executed in England, may be seen in the tables already referred to. In the Lent Circuit only, no less than 286 persons were capitally convicted in 1786, and the annual amount of those transported is from 960 to a thousand. It is needless to make observations on these striking facts which prove conclusively, that the severity of the laws instead of prevent- ing, is frequently the cause of crimes. The humanity of mankind revolts at a strict execution of them, and the hopes of impunity become a source of temptation. To this, Mr. Howard, among others, traces the mischief: "and yet, (he adds) many are brought by it to an untimely end, who might have been made useful to the state." Laz. 221. No one will deny the justice of this last observation, when

PAO 84 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 166 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 they learn from the mouth of the Solicitor General of England, "That of those who are executed, eighteen out of twenty do not exceed 20 years of age." 18 Parl. Reg. 22. It is difficult to conceive how a free, humane, and generous people should have so long endured this weak and barbarous policy; or why America should be fond of retaining any part of a system, as ineffectual as it is severe!

NOTE VII. Page 11. Horse -stealing is a crime which naturally irritates a nation of farmers : and when they are provoked by its frequency they are apt to call for a punishment neither proportioned to the offence nor cal- culated to prevent it. This crime became so prevalent in Pennsylvania, during the con- fusions of the war, which interrupted the regular administration of justice, that the assembly thought it necessary to increase the punishment of it. They would have extended the penalty to death itself, had not the late Judge Bryan, at that time a member of the legislature (who to a sound understanding added a familiar acquain- tance, with all the philosophy of jurisprudence) strenuously opposed it. He made it evident to the good sense of the country members, who were intent upon this punishment, that the severity of the act would defeat its execution, and that a milder penalty would be a more effectual restraint. The subsequent experience of Pennsylvania compared with that of New Jersey (where in the same year the penalty of death was resorted to) fully proves the soundness of this opinion. I know not any government in Europe which punishes this offence with death, in the present day, except that of England; and even there, the humanity of the nation has almost virtually abolished it. Of ninety persons, who in the space of 23 years, were convicted at Old Baily, previous to 1771, there were but 22 executed, which is less than a fourth. See Jansens Tables. The multitude who escape for want of prosecution, or by the tenderness of juries, is much greater; and it is now so common to grant a reprieve, that a well informed writer affirms, that the chance of obtaining it is as one to forty in favour of the thief! Thoughts on Ex. Just. p. 42. One reason of this may be, that many persons consider it as unlawful to inflict the punishment of death, in any case of simple theft, since it is warranted by no part of the law given to the Jews. A similar difficulty in enforcing a punishment so dispropor- tionate to the offence, has been experienced in some parts of Amer- ica : and it will every day become more and more apparent in those states, which still retain this unnecessary severity. I have very

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respectable authority (that of the Attorney General of the United States) for saying, "that within the last ten years, pardons for horse - stealing have multiplied in Virginia : and while the convicts might by law put to hard labor, or executed at the will of the executive, scarce a single horse -stealer suffered death, unless he had repeated the crime, or was under some very obnoxious circumstances."

NOTE VIII. Page 11. It may be considered as improper to appeal to the example of Maryland, where these crimes are still felonies of death, without benefit of clergy. But as the Court have it in their discretion to adjudge every such offender to hard labour, instead of pronouncing the sentence of death; the latter is so rare, that (as to every purpose of terror or example) it may be considered as. abolished. The punish- ment of hard labor, continually offered to the public eye, will be con- sidered as the only penalty prescribed by the laws; and no offender will count upon a greater severity, even if he be convicted. There is reason to believe, that this mild administration of jus- tice has not produced any increase of crimes-although the method of treating the male convicts, does not appear to be the most un- exceptionable. How the fact is, I have no information sufficiently accurate and particular, positively to affirm. Measures have been taken to procure it, and if it arrives in time, it shall be added in a postscript. Whether the task of deciding, at discretion, on the life or death of a fellow creature, should be imposed on any Court, and how far such a power is consistent with the spirit of a republic, which is a government of laws and not of men, may deserve consideration. The degree of the punishment must necessarily be left to judicial discretion: but its nature ought, as far as possible, to be ascertained by the laws. See Acts Maryl. Nov. Sess. 1789.

NOTE rx. Page 30. There is scarce any crime which escapes punishment so often as that of rape. In support of this, I appeal to the following facts in addition to those mentioned in the text. Between the years 1720 and 1732, there were 24 persons tried for this crime at Old Bailey. Of all these only two were convicted; one of them, the infamous Col. Charters, who was pardoned; the other, a servant boy, aged fifteen, who was hanged. Select Trials, &c, 1 & 2 vol.

Jansens Tables do not state the number of acquittals : but they prove this fact, That in 23 years, no more than 9 persons were con- victed of rape, and of these there were executed-Two!

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Though it is not in my power to state the relative number of persons convicted or acquitted of this crime in other states, I have such information as satisfied me that the severity of the punish- ment produces in America the same effects which attend it in Eng- land and Scotland. Mr. Randolph, who held the office of Attorney General in Vir- ginia, many years, informs me, that "thus much may be safely affirmed, that the proportion of the acquitted to the charged in that state was very great leaving but few convicts. It seemed as if some- thing more than usual tenderness for life, operated with the juries on these occasions; and they appeared to lay aside their natural abhorrence of the act, to seize the smallest symptoms of innocence!"

NOTE x. Page 35. The practice of punishing murder with death, has been so gen- eral among civilized nations, that some writers have considered it as sanctioned by the universal consent of mankind, and as absolutely necessary for the safety of society. It is certain, however, that it has been dispensed with in many countries at different periods : and a review of the best authenticated facts of this kind (obscured as some of them may be, by the mist of time) will not be useless. Taken together they will impress upon our minds these two important truths-That the penalty of death is not in its own nature necessary -and yet That it is dangerous, rashly to abolish it! The most ancient instance on record, is that of Sabaco, king of Egypt. The account is to be found in Herodotus and Diadorus Siculus: That of the latter, translated by Booth, is thus: "A long time after him one Sabach, an Ethiopean, came to the throne going beyond his predessors in his worship of the gods and kindness to his subjects. Any man may judge his gentle disposition in this, that when the law pronounced the severest judgment, I mean sentence of death, he changed the punishment, and made an edict that the condemned person should be kept to work in the town, in chains, by whose labour he raised many mounts and made many commodious canals." p. 34. He thought (says Mr. Goguet) that Egypt would draw more profit and advantage from this kind of punishment, which, being for life, appeared to him equally adapted to punish crimes and to repress them." What its effects were is not so evident: but the ancients speak in terms of approbation of this clemency: and it is certain, that during his long reign of 50 years, Sabaco did not see cause to alter it: and his successor Anysis, seems to have con- tinued it. This example is cited with approbation, by Sir Tho. Moore, Puffendorff, Grotius, and other modern writers. See Diod. Sic. L. I.

PAO 87 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 169 ch. 65. Puff. b. 8. ch. 3. §23. Goug. Orig. Laws, 3 vol. p. 15. 1st Rollin Ant. Hist. 90. "Among the Persians it was not lawful either for a private per- son to put any of his slaves to death, or for the Prince to inflict capital punishment upon any of his subjects for the first offence; because it might rather be considered as an effect of human weak- ness and frailty than of a confirmed malignity of heart." 2d Rollin Ant. Hist. p. 221. Rome furnishes us with a more brilliant and better authen- ticated example. It is well known that soon after the expulsion of the Decemviri the Porcian law ordained, that no citizen of Rome should be put to death. In the happy ages of the republic, his country was everything to a Roman, and banishment the heaviest of punish- ments !-For the space of 200 years, from the establishment of equal liberty to the end of the second Punic war, penalties short of death were found sufficient for the government of Rome. Simple in their manners-frugal-unacquainted with luxury, and intent upon con- quering the world, these proud republicans had neither leisure nor inclination for the commission of crimes. Livy, more than once triumphs in this moderation of punishments, and no historian has hinted that during the period I have mentioned, they were inade- quate to their object! But we must remember at the same time, that capital punish- ments were found necessary in the camp, and while they were denied to the magistrate, were absurdly trusted to the direction of a master and a parent. See 4 Gibbon's Hist. ch. 44. Quarto. When Rome lost her liberty, a profusion of capital punishments ensued; and under the Emperors, the hands of the executioner were every day stained wtih the blood of the citizen. But in the decline of the Eastern Empire, an opinion grew up, that it was unlawful to shed Christian blood : and capital punishments were sometimes suppressed without substituting any efficient check in their place. To mutilate an offender and then turn him loose, was but to provoke him to the commission of new crimes. Hence they became frequent -insurrections multiplied-and the throne tottered from the shame- ful imbecillity of the laws. Anastatius, it is said, punished no crimes at all: and Mauritius, Isaac Angelus, and others, by rashly sup- pressing the punishment of death among so corrupted a people, en- dangered their own safety and that of their subjects. See Rise and Fall of Rom. Emp. p. 212. Spir. Laws B. 6. ch. 21. The conduct of Alexius Comnenus, an enlightened Prince, dis- tinguished equally for his talents and virtues, deserves a closer in- spection; and I regret that I have no sources of information suffi- ciently particular to ascertain the effects of his regulations. I only

PAO 88 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 170 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. 12 learn from Mr. Gibbon, "That during his reign of 25 years, the penalty of death was abolished in the Roman Empire: a law of mercy most delightful to the humane theorist, but of which, the practice in a large and vicious community is seldom consistent with the public safety. Severe to himself, indulgent to others, chaste, frugal and abstemious, he despised and moderated the stately magnificence of the Byzantine Court, so oppressive to the people, and so contemptible to the eye of reason. Under such a prince, innocence had nothing to fear, and merit every thing to hope: and without assuming the tyran- nical office of Censor, he introduced a gradual, but "visible ref orma- tion in the public and private manners of Constantinople." V Gibb. Hist. Decline and Fall, &c. ch. 48. The punishments inflicted on those who conspired against him, were confiscation of goods, and banishment. 6 Univ. Hist. 617. The only countries in modern Europe, in which murder is not punished with death, are Russia and Tuscany. It has already been mentioned that the Empress Elizabeth made a vow, that she would put no one to death. This clemency has been much celebrated, and Blackstone enquires "Was the vast territory of all the Russia's worse regulated under the late Empress than under her more sanguinary predecessors ?" But Mr. Williams assures us, that the abuse of this clemency became so intollerable, that the senate requested Catharine II to re-establish the law, which ordained that certain crimes should be punished with death. North. Gov. vol. I. p. 255. This appears to have been complied with: as the same author mentions an instance of four villains being condemned to be broke upon the wheel for murder, p. 266. The punishment of death, however, is now formally retained only in the case of high treason: yet, in that prescribed for murder, it virtually subsists. Though no one is litterally sentenced to die, many are knooted to death. This punishment, says Mr. How- ard, is often dreaded more than death, and sometimes the criminal has endeavored to bribe the executioner to kill him. It seldom causes immediate death, but death is often the consequence of it. Pris. 86. 2d Coxe's Tray. 82. Tho' all felons are liable to undergo the knoot, yet it is inflicted with this peculiar severity on murderers, "who never receive any mitigation of their punishment." To this is added the slitting of the nostrils, and branding on the cheek with hot irons. This horrid method of torturing the body, attended with such con- sequences, may well be dreaded more than the mere loss of life, and I cannot consider it as any moderation of the punishment. It is probably owing to the remaining barbarism of some parts of Russia, that this severity is thought necessary: and the abuse of the clemency of the former reign has been attributed to this circumstance. 2d Will. North. Gov. 232.

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But what shall we say to the example of Tuscany? There, not only are the pains of death abolished, but every kind of cruel punish- ment is prohibited. The beneficial effects have been stated : and General Lee says, "It is a known fact that since the adoption of this plan, there have been but two murders committed : one by a little boy of eleven years old, in a stroke of passion; and the other, not by a native Italian subject, but by an Irish officer." Memoirs, p. 53. But the point of time to which he refers is not ascertained. It were desirable to know how far that police which the Grand Duke calls "a vigilant attention to prevent the commission of crimes," extends, and whether it coincides with the general liberty of the sub- ject. If it be such as was established by Spinelli at Rome, or as is in use at Vienna and Madrid, it could not be tolerated in a free country. D'Archenholtz's, Italy, §8. p. 161. 1 Reisb. Tray. p. 244. As that part of the edict which abolishes the penalty of death, contains the reasons upon which it is founded, and is little known in this country, I shall here insert it. "We have seen with horror the facility with which, in the for- " mer laws, the pain of death was decreed, even against crimes of " no very great enormity; and having considered that the object of " punishment ought to consist-in the satisfaction due either to a " private or a public injury-in the correction of the offender, who " is still a member and child of the society, and of the state, and " whose reformation ought never to be despaired of-in the security " (where the crime is very atrocious in its nature) that he who has " committed it shall not be left at liberty to commit any others- " and finally, in the public example; and that the government, in the " punishment of crimes, and in adapting such punishment to the " objects, towards which alone it should be directed, ought always " to employ those means, which, whilst they are the most efficacious, are the least hurtful to the offender; which efficacy and modera- " tion we find to consist more in condemning the said offender to " hard labor, than in putting him to death; since the former serves " as a lasting example, and the latter only as a momentary object " of terror, which is often changed into pity; and since the former takes from the delinquent the possibility of committing the same " crime again, but does not destroy the hope of his reformation, and " of his becoming once more an useful subject; and having con- " sidered besides, that a legislation very different from our preced- " ing one, will agree better with the gentle manners of this polished " age, and chiefly with those of the people of Tuscany, we are come " to a resolution to abolish, and we actually abolish forever, by the present law, the pain of death, which shall not be inflicted on any " criminal," &c. Sect. 51.

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NOTE XI. Page 36. Those who have been witnesses to the solemn manner in which executions are conducted in some parts of Europe, speak of the im- pression arising from that circumstance as wonderfully strong. Dr. Moore describes such an execution which he was present at in Rome, and mentions in strong language how deeply the populace were af- fected by it! See Letter 44, vol. 4. Mr. Howard, remarked the same thing in Holland: and accounting for the few executions which take place in United Provinces, says, "one reason of this, I believe, is the awful solemnity of executions which are performed in the presence of the magistrates, with great order and seriousness, and great effect upon the spectators. Pris. 45 p. Whoever will contrast this with the manner in which executions have been heretofore conducted among us, will readily perceive that though we exhibit this terrible spectacle, we do not derive from it all the benefits it was designed to produce.

NOTE XII. Page 37. "In Russia, says Montesquieu, where the punishment of rob- bery and murder is the same, they always murder." He speaks here of the reign of Elizabeth: but the mischief seems to have continued for some time after Catherine II. ascended the throne. Mr. Rich- ardson, who was in Russia in 1770, mentions the practice as existing at that day. "Robberies, (says he) are here very frequent and bar- barous, and constantly attended with murder." Richards. Anecd. p. 323. This circumstance was not unattended to; and in her instructions, § 86. The Empress declares 'that it is the last injustice to punish in the same manner the robber, who contents himself with robbing, and him, who not only robs, but murders at the same time." Accord- ingly the new code has drawn this necessary distinction. Robbers are sent to public labour in Siberia, while murderers, besides under- going the knoot, are branded in the face with hot irons, kept in chains, or have their nostrils torn: and except upon a general or particular amnesty, they receive no mitigation. See 2d Coxe's Tray. 86 & passim. I believe this discrimination in the punishment has put a stop to the evil complained of before it was introduced: for among all the later writers on the state of Russia, I find no one who hints that any such practice prevails at present in that Empire. See some excellent observations on the necessity of this discrimination, 4th Blackst. Com. 10 Montesquieu, B. 6. ch. 16.

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NOTE XIII. Page 45. I firmly believe that the success of all punishments by hard labour and solitary confinement, must finally depend upon the wis- dom of the regulations, which shall be established in the gaols of penitentiary houses, and upon the prudence and attention of those, to whom the management of the prisoners is committed. Some useful hints upon this subject lie buried, under a variety of other matter, in Mr. Howard's Treatise on Prisons and Lazarettos : and it is much to be regretted, that no well digested plan for the interior management of those places of confinement, has hitherto been published. The best substitute is an account of such plans as are now in use: and Mr. Caleb Lownes, one of the inspectors of the gaol of Philadelphia, (to whose humane zeal and attention, in the discharge of this voluntary duty, the public are much indebted) has undertaken to give a detail of the regulations adopted in the gaol, and penitentiary house in this place, and of the management and employment of the convicts. The more minute the information is, the more useful and interesting it will be, when our sister states turn their attention to the revision and reform of their criminal laws. In hopes that this event is not very distant, I shall here add a few principles on this subject, collected from the facts, or observa- tions of Mr. Howard. First. That houses for convicts at labour, ought to be in or near a large town or city, and easily accessible to those who have the inspection of them. This last circumstance seems to be of the utmost importance. Second. Mr. Howard uniformly found those houses best man- aged, when the inspection was undertaken without mercenary views, and solely from a sense of duty, and a love to humanity. So reputable is this humane task in Germany, that at Frankfort, the house of cor- rection is inspected by the Ladies. Pris. 128. Lazar. 71. Third. Steady, lenient, and persuasive measures, were always found to be the best means for preventing escapes; and far prefer- able to rough usage, which often made the prisoners desperate. Laz. 206. Pris. 39. Fourth. The great object to be attended to (especially with young offenders) ought to be to reclaim and reform them. Many facts prove, that this is not so difficult as some persons apprehend. Their earnings must therefore be a secondary consideration; and if the house does not maintain itself, (as in many places it will not) that circumstance ought not to be regarded. To promote this object of reformation, the young offenders ought to be separated from those who are old and hardened.

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Fifth. In order to hold out a real object of terror, solitary confinement, on coarse diet, should be the invariable portion of every old or great offendre. This, however, it is best to inflict at intervals, and seldom longer than 20 or 30 days at a time. The observations of Mr. Howard on this subject, deserves attention, and with them I close this note. "The intention of solitary confinement, (I mean by day as well as by night) is either to reclaim the most atrocious or daring criminals-to punish the refractory for crimes committed in prison-or to make a strong impression, in a short time, upon thoughtless and irregular apprentices, or the like. It should, there- fore be considered by those who are ready to commit, for a long time, petty offenders to absolute solitude, that such a system is more than human nature can bear, without the hazard of distraction or despair: and that, for want of some employ in the day, health is impaired, and a habit of idleness and inability to labor in future, is in danger of being acquired. The beneficial effects on the mind of such a punishment, are speedy proceeding from the horror of a vicious person's being left entirely to his own reflections. This may wear off by a long continuance, and a sullen insensibility may succeed." Laz. p. 169. in notis.

NOTE XIV. Page [451 A revision of the criminal laws of Pennsylvania, at present occupies the attention of the Legislature. Those who wish to know the progress that has already been made in this great work, may find it in the following resolves, which, on the 22d instant (Feb- ruary) were entered into by the senate. Resolved, That for all offenses (except murder of the first degree) which are made capital by the existing laws of Penn- sylvania, the punishment shall be changed to imprisonment at hard labor, varying in duration and severity, according to the degree of the crime. Resolved, That the crimes, at present classed under the general denomination of Murder, be divided into murder of the first and murder of the second degree: the latter punishable with imprison- ment, at hard labor, or in solitude, or both, for any time not exceeding 21 years. Resolved, That all murder, perpetrated by poisoning, or by lying in wait, or by any kind of wilful, premeditated, and deliberate kill- ing, shall be deemed murder in the first degree: and all other kinds of murder, shall be deemed murder in the second degree: and the jury, before whom any person shall be indicted for murder, if

PAO 93 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 1968 DOCUMENTS 175 they find the party guilty thereof, shall ascertain whether it be murder in the first or second degree. Resolved, That all claims to dispensation from punishment by benefit of clergy, or benefit of the act of assembly, entitled, "An act for the advancement of justice, and the more certain adminis- tration thereof," shall be forever abolished, and a definite punish- ment be prescribed, for all offences, at present deemed clergyable: the punishment for the second offence, to be the same in its nature, but in a higher degree. Resolved, That a committee be appointed to bring in a bill, supplementary to the penal laws of this state, for the purpose of carrying the preceding resolutions into effect. The conunittee who brought in these resolutions, reporting, "That they have doubts at present, whether the terrible punish- ment of death be in any case justifiable and necessary in Pennsyl- vania; and are desirous that the public sentiment on this important subject may be more fully known," and therefore offering the following resolution, the same was adopted by the senate, viz. Resolved, That the revision and amendment of the laws, respect- ing murder of the first degree, be specially recommended to the early attention of the next Legislature. We may, therefore hope, that Pennsylvania will soon give to her sister states, an example of humane legislation, which may tend, in its consequences, to meliorate the condition of mankind. Feb. 26, 1793.

PAO 94 This content downloaded from 130.91.147.53 on Wed, 12 Dec 2018 19:20:11 UTC All use subject to https://about.jstor.org/terms 174 The Statutes at Large of Pennsylvania,. [1794

respective district so convened, shall cause the said general re- turn to be delivered to the sheriff of the county in which they shall be thus convened, and shall also cause a duplicate thereof, signed and sealed in the same manner, to be deposited in the office of the prothonotary of such county. [Section VI.] (Section VI, P. L.) And tae it further enacted by the authority aforesaid, That such sheriff, having received the said return, shall, within forty days after such election, deliver or safely transmit the same to the governor, who shall thereupon declare, by proclamation, the name of the person or persons to him returned as duly elected in each respective district, and shall thereafter, as soon as conveniently may be, transmit the returns so to him made, to the house of representatives of the United States. Passed April 22, 1794. Recorded L. B. No. 5, p. 275, &c.

CHAPTER MDCCLXXVIT.

AN ACT FOR THE BETTER PREVENTING OF CRIMES, AND FOR ABOL- ISHING THE PUNISHMENT OF DEATH IN CERTAIN CASES.

Whereas the design of punishment is to prevent the commis- sion of crimes, and to repair the injury that bath been done thereby to society or the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe and excessive punish- ments. And whereas it is the duty of every government to endeavor to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted where it is not absolutely necessary to the public safety. Therefore: [Section I.] (Section I, P. L.) Be it enacted by the Senate sand Housp of Representatives of the Commonwealth of Penn- sylvania, in General Assembly met, and it is hereby enacted by the authority of the same, That no crime whatsoever, hereafter committed (except murder in the first degree) shall be punished with death in the state of Pennsylvania. PA095 1794] The ktatutes at Large of Pennsylvania. 175

(Section II, P. L.) And whereas the several offenses which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment. [ Section II.] Be it further enacted by the authority afore- said, That all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, de- liberate or premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree; and the jury, before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence ac- cordingly. [ Section III.] (Section III, P. L.) And be it further en- acted by the authority aforesaid, That every person liable to be prosecuted for petit treason, shall in future be indicted, pro- ceeded against and punished, as is directed in other kinds of murder. [Section IV.] (Section IV, P. L.) And be it further en- acted by the authority aforesaid, That every person duly con- victed of the crime of high treason, shall be sentenced to undergo a confinement in the gaol and penitentiary house of Philadel- phia, for a period not less than six nor more than twelve years, and shall be kept therein at hard labor, or in solitude, and shall in all things be treated and dealt with as is prescribed by an act, entitled, "An act to reform the penal laws of this state,"1 or by the provisions of this act; that every person duly convicted of the crime of arson, or as being an accessory thereto, shall be sentenced to undergo a similar confinement, for a period not less than five nor more than twelve years, under the same conditions as are herein expressed in the first clause of this section; that every person duly convicted of the crime of rape, or as being accessory thereto before the fact, shall be sentenced to undergo a similar confinement, for a period not less than ten years nor

PAO 96 176 The Statutes at Large of Pennsylvania. [1794

more than twenty-one years, under the same conditions as are herein expressed in the first clause of this section; that every person duly convicted of the crime of murder of the second degree, shall be sentenced to undergo a similar confinement, for a period not less than five years nor more than eighteen years, under the same conditions as are herein expressed in the first clause of this section. [Section V.] (Section V, P. L.) And be it further enacted by the authority aforesaid, That every person who shall be con- victed of having, after the passing of this act, safely forged and counterfeited any gold or silver coin, which now is or hereafter shall be passing or in circulation within this state, or of having falsely uttered, paid, or tendered in payment, any such counter- feit or forged coin, knowing the same to be forged and counter- feit, or having aided, abetted or commanded the perpetration of either of the said crimes, or shall be concerned in printing, sign- ing or passing any counterfeit notes of the bank of Pennsyl- vania, North America, or the United States, knowing them to be such, or altering any genuine notes of any of the said banks, shall be sentenced to undergo a confinement in the gaol and peni- tentiary house aforesaid, for any time not less than four nor more than fifteen years, and shall be kept, treated and dealt with in the manner aforesaid, and shall also pay such fine as the court shall adjudge, not exceeding one thousand dollars. [Section VI.] (section VI, P. L.) And be it further en- acted by the authority aforesaid, That whosoever, on purpose and of malice aforethought, by lying in wait, shall unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off the nose, ear or lip, or cut off or disable any limb or member of another, with intention, in so doing, to maim or disfigure such person, or shall voluntarily, maliciously, and of purpose, pull or put out an eye, while fighting or otherwise, every such offender, his or her alders, abettors, and counsellors, shall be sentenced to undergo a confinement, in the gaol and peniten- tiary house aforesaid, for any time not less than two nor more than ten years aforesaid, and shall also pay a fine not exceeding one thousand dollars, three fourth parts whereof shall be for the use of the party grieved. [Section VII.] (Section VII, P. L.) And be it further en- PA097 1794] The Statutes at Large of Pennsylvania. 177 acted by the authority aforesaid, That whosoever shall be con- victed of any voluntary manslaughter hereafter committed, shall be sentenced to undergo an imprisonment at hard labor and solitary confinement in the gaol and penitentiary house of Phila- delphia, for any time not less than two nor more than ten years, and to give security for his or her good behavior during life, or for any less time, according to the nature and enormity of the offence, shall be sentenced to undergo an imprisonment at hard labor and solitary confinement, in the gaol and penitentiary house aforesaid, for any time not less than six nor more than. fourteen years. [Section VIII.] (Section VIII, P. L.) And be it further en- acted by the authority aforesaid, That wheresoever any person shall be charged with involuntary manslaughter happening in consequence of an unlawful act, it shall and may be lawful for the attorney general or other person prosecuting the pleas of the commonwealth, with the leave of the court, to waive the felony, and to proceed against and to charge such person with a misde- meanor, and to give in evidence any act or acts of manslaughter, and such peTson or persons, on conviction, shall be fined or im- prisoned, as in cases of misdemeanor; or the said attorney gen- eral, or other person, prosecuting the pleas of the common- wealth, may charge both offences in the same indictment, in which case the jury may acquit the party of one, and find him or her guilty of the other charge. [Section IX.] (Section IX, P. L.) And be it further en- acted by the authority aforesaid, That all claims to dispensa- tion from punishment by benefit of clergy, or benefit of the act of assembly, entitled, "An act, for the advancement of justice, and more certain administration thereof,"1 shall be, and hereby are, forever abolished; and every person convicted of any felony heretofore deemed clergyable, shall undergo imprisonment at hard labor and solitary confinement in the gaol and penitentiary house aforesaid, for any time not less than six months and not more than two years, and shall be treated and dealt with as is di- rected in the act to reform the penal laws of this state, except in those cases where some other specific penalty is prescribed by 12--XV PA098 178 The Statutes at Large of Pennsylvania. [1794

the act aforesaid to reform the penal laws of this state, or by this act, [Section X.] (Section X, P. L.) And be it further enacted. by the authority aforesaid, That every person convicted in any county in this state, other than Philadelphia county, of any crime (except murder of the first degree) which now is, or on the fifteenth day of September, one thousand seven hundred and eighty-six, was capital, or a felony of death, without benefit of clergy, or of knowingly uttering counterfeit coin, or of being concerned in printing, signing or passing any counterfeit notes of the banks of Pennsylvania, North America or of the United states, knowing them to be such, or of altering any of the genuine notes of either of the said banks, shall, as soon as pos- sible, be safely removed and conveyed by the sheriff, and at the expense of the commonwealth, to the gaol and penitentiary house aforesaid, and therein be kept during the term of their confine- ment, in the manner and on the terms mentioned in the thirty- fourth section of the act, entitled, "An act to reform the penal laws of this state'T and every sheriff who shall neglect to re- move and safely deliver at the gaol aforesaid such convict, shall forfeit and pay the sum of one hundred dollars, to be recovered in any court of justice, and applied, one-half to the use of the county in which the offence was committed, the other half to such persons as shall sue for the same. [ Section XL] (Section XI, P. L.) And be it further en- acted by the authority aforesaid, That every person convicted of any of the crimes last aforesaid, and who shall be confined in the gaol and penitentiary house aforesaid, shall be placed and kept in the solitary cells thereof, on low and coarse diet, for such part or portion of the term of his or her imprisonment as the court, in their sentence, shall direct and appoint. Provided, That it be not more than one-half nor less than one - twelfth part thereof. And that the inspectors of the said gaol shall have power to direct the infliction of the said solitary con- finement, at such intervals and in such manner as they shall judge best. (Section XII, P. L.) Whereas it is of importance that the nature of the offence, and the former character and conduct of

PA099 1794] The Statutes at Large of Pennsylvania. 179 the convict should be known by the said inspectors, and their successors in office. [Section XII.] Bt it further emacted by the authority afore= said, That whensoever any person shall be convicted of any crime which, on the fifteenth day of September, one thousand seven hundred and eighty-six, was capital, or a felony of death, shall be removed from any county to the gaol and penitentiary house aforesaid, the court before whom such conviction is had, shall, within forty days after such offender is removed from the said county, make and cause to be transmitted to the said inspectors, a report or short account of the circumstances attending the crime committed by such convict, partiimlarly such as tend to aggravate or extenuate the same, and also what character the said convict appeared on the trial to sustain, and whether he had at any time before been convicted of any felony or other infamous crime, which report the said inspectors shall cause to be en- tered in books or registers to be provided for that purpose. [Section XIII.] (Section XIII, P. L.) And be it further enacted by the authority aforesaid, That if any person con- victed of any crime which, on the said fifteenth day of September, one thousand seven hundred and eighty-six, was capital, or a felony of death, without benefit of clergy, shall commit any such offence a second time, and be thereof legally convicted, he or she shall be sentenced to undergo an imprisonment in the said gaol and penitentiary house at hard labor during life, and shall be confined in the said solitary cells, at such times and in such manner as the inspectors shall direct; and if any person sen- tenced to hard labor and solitary confinement, by virtue of this er any former act, shall escape, or be pardoned, and after his or her escape or pardon shall be guilty of any such offence, as On the said fifteenth day of September, one thousand seven hun- dred and eighty-six, was capital, or a felony of death, without benefit' of clergy, such person shall be sentenced to undergo an imprisonnient for the term of twenty-five years, and shall be confined in the solitary cells aforesaid, at the discretion of the said inspectors. [Section XIV.J (Section XIV, P. L.) And be it further en- acted by the authority aforesaid; That if any person shall here- after be convicted of any crime committed before the passing of PA100 180 The Statutes at Large of Pennsylvania. [1794

this act, he or she shall be sentenced to undergo such pains and punishment, as by the laws now in force are prescribed and directed, unless such convict shall openly pray the court, before whom such conviction shall be had, that sentence may be pro- nounced agreeably to the provisions of the act for the like offence, in which case the said court shall comply with the said prayer, and pass such sentence on such convict as they would have passed had the said offence been committed subsequent to the passing of this act. [Section XV.] (Section XV, P. L.) And be it further en- acted by the authority aforesaid, That every person convicted of murder of the first degree, his or her aiders, abettors and coun- sellors, shall suffer death by hanging by the neck. [Section XVI.] (Section XVI, P. L.) And be it further en- acted by the authority aforesaid, That no person indicted for any crime, the punishment whereof is altered by this act, shall lose any peremptory challenge, to which he or she would have been entitled had this act not been passed, nor be liable to be tried before any court other than the supreme court, or court of over and terminer, in the county where the fact was com- mitted. [Section XVII.] (Section XVII, P. L.) And be it further enacted by the authority aforesaid, That if any woman shall endeavor privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, which, if it were born alive, would by the law be a bastard, so that it may not come to light whether it was born dead or alive, or whether it was murdered or not, every such mother, being convicted thereof, shall suffer imprisonment at hard labor in the county gaol of the county where the fact was committed, or in the gaol and penitentiary house aforesaid, for any time not exceeding five years; or shall be fined and im- prisoned, at the discretion of the court, according to the nature of the case; and if the grand jury shall, in the same indictment, charge any woman with the murder of her bastard child, as well as with the offence aforesaid, the jury by whom such woman shall be tried, may either acquit or convict her of both offences,

PA101 1794] The Statutes at Large of Pennsylvania. 181 or find her guilty of one and acquit her of the other, as the case may be. [Section XVIII.] (Section XVIII.) And be it further en- acted by the authority aforesaid, That the concealment of the death of any such child shall not be conclusive evidence to con- vict the party indicted of the murder of her child, unless the cir- cumstances attending it be such as shall satisfy the mind of the jury, that she did wilfully and maliciously destroy and take away the life of such child. [ Section XIX.] (Section XIX, P. L.) And be it further enacted by the authority aforesaid, That the several acts of as- sembly of this commonwealth and such parts thereof, so far as the same are repugnant to or supplied by this act, and no further, shall be, and hereby are, repealed.

IPassed April 5, 1790, Chapter 1516. IPassed May 31st, 1718, Chapter 236. ISee Ante. Repealed by the Act of Assembly passed March 31, 1861, Chapter 376, P. L. 1860, p. 452.

CHAPTER MDCCLXXVIII.

AN ACT TO ENABLE THE GOVERNOR OF THIS COMMONWEALTH TO INCORPORATE A COMPANY, FOR MAKING AN ARTIFICIAL ROAD FROM THE BOROUGH OF LANCASTER TO THE RIVER SUSQUEHANNA, AT OR NEAR WRIGHT'S FERRY.

Whereas the improvement of roads and highways is of the first importance to the interest of agriculture and commerce, and the rapid progress of the improvement of the road from Phila- delphia to Lancaster evinces a laudable spirit of enterprise among the good people of this state, and affords a, reasonable ground of expectation that an extension of the same road. west- ward may be effected. Therefore : [Section I.] (Section 1, P. L.) Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsyl- vania, in General Assembly met, and it is hereby enacted by

PA1 02 COLLECTED WORKS OF James Wilson

SIM

PA103 JAMES WILSON

PA104 COLLECTED WORKS OF James Wilson Mg

James Wilson

Edited by Kermit L. Hall and Mark David Hall with an Introduction by Kermit L. Hall and a Bibliographical Essay by Mark David Hall Collected by Maynard Garrison

VOLUME I

IF- 4'74) Liberty Fund INDIANAPOLIS

PA105 This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest -known written appearance of the word "freedom" (amagi), or "liberty." It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash. Introduction, Collector's Foreword, Collector's Acknowledgments, Annotations, Bibliographical Essay © 2007 Liberty Fund, Inc. Cover art: James Wilson, etching by Max Rosenthal, 1890. From Library of Congress, Prints and Photographs Division, James Wilson Biographical File, Lc-usz62-6065. Frontispiece portrait ofJames Wilson by James Barton Longacre, after an original by J. P. H. Elouis, c. 1825, by permission of the National Portrait Gallery, Smithsonian Institution. All rights reserved Printed in the United States of America

II 10 09 o8 07 c 5 4 3 2 I

II 10 09 o8 07 P 5 4 3 2 I Library of Congress Cataloging-in -Publication Data Wilson, James, 1742-1798. [Works] Collected works ofJames Wilson/edited and with an introduction by Kermit L. Hall with a Bibliographical Essay by Mark David Hall; collected by Maynard Garrison. p. cm. Includes bibliographical references and index. ISBN -13: 978-0-86597-682-5 (hardcover-set: alk. paper) ISBN -13: 978-0-86597-684-9 (hardcover-vol alk. paper) ISBN -13: 978-0-86597-685-6 (hardcover-vol 2: alk. paper) ISBN -13: 978-0-86597-683-2 (pbk.-set: alk. paper) [etc.] 1. Law-United States. I. Hall, Kermit. II. Title. KF2I3.w5H35 2007 349.73-dc22 2006102965

Liberty Fund, Inc. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684

PA106 CONTENTS

Volume I

Collector's Acknowledgments ix Collector's Foreword xi Introduction xiii

PART I Political Papers, Speeches, andJudicial Opinions ofJames Wilson

Considerations on the Nature and Extent of the Legislative

Authority of the British Parliament (1774) 3 Speech Delivered in the Convention for the Province of Pennsylvania, Held at Philadelphia, in January 1775 32 An Address to the Inhabitants of the Colonies (1776) 46 Considerations on the Bank of North America (1785) 6o Remarks of James Wilson in the Federal Convention of 1787 8o James Wilson's State House Yard Speech (October 6, 1787) 171 Remarks of James Wilson in the Pennsylvania Convention to Ratify the Constitution of the United States (1787) 178 Oration Delivered on the 4th of July, 1788, at the Procession Formed at Philadelphia to Celebrate the Adoption of the

Constitution of the United States 285 Speech on Choosing the Members of the Senate by Electors; Delivered, on the 31st December, 1789, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State 294

PA107 Vi CONTENTS

Speech Delivered, on i9th January, 1790, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State 309 A Charge Delivered to the Grand Jury in the Circuit Court of the United States for the District of Virginia, in May, 1791 320 Hayburn's Case (1792) 346

Chisholm v. Georgia (1793) 351 Henfield's Case (1793) 367 Ware v. Hylton (1796) 370 On the Improvement and Settlement of Lands in the United States 372 On the History of Property 387

PART 2 Lectures on Law

Mark David Hall, Bibliographical Essay: "History of James Wilson's Law Lectures" 401 Preface by Bird Wilson 417 Lectures on Law, Part i 427 Chapter I. Introductory Lecture. Of the Study of the Law in the United States 431 Chapter II. Of the General Principles of Law and Obligation 464 Chapter III. Of the Law of Nature 500 Chapter IV. Of the Law of Nations 526 Chapter V. Of Municipal Law 549 Chapter VI. Of Man, as an Individual 585 Chapter VII. Of Man, as a Member of Society 621 Chapter VIII. Of Man, as a Member of a Confederation 645 Chapter IX. Of Man, as a Member of the Great Commonwealth of Nations 673 Chapter X. Of Government 689 Chapter XI. Comparison of the Constitution of the United States, with That of Great Britain 718

PA1O8 CONTENTS Vii

Volume 2

Lectures on Law, Part i (continued) 747 Chapter XII. Of the Common Law 749 Chapter XIII. Of the Nature and Philosophy of Evidence 792 Part 2 Chapter I. Of the Constitutions of the United States and of Pennsylvania - Of the Legislative Department 829 Chapter II. Of the Executive Department 873 Chapter III. Of the Judicial Department 885 Chapter IV. Of the Nature of Courts 943 Chapter V. Of the Constituent Parts of Courts. - Of the Judges 950 Chapter VI. The Subject Continued. - Of Juries 954 Chapter VII. The Subject Continued. - Of Sheriffs and Coroners 1012 Chapter VIII. The Subject Continued. - Of Counsellors and Attornies 1019 Chapter IX. The Subject Continued. - Of Constables 1033 Chapter X. Of Corporations 1035 Chapter XI. Of Citizens and Aliens 1038 Chapter XII. Of the Natural Rights of Individuals 1053 Part 3 Chapter I. Of the Nature of Crimes; and the Necessity and Proportion of Punishment 1087 Chapter II. Of Crimes Against the Right of Individuals to Their Property 1118 Chapter III. Of Crimes Against the Rights of Individuals to Liberty, and to Reputation 1130 Chapter IV. Of Crimes Against the Right of Individuals to Personal Safety 1137 Chapter V. Of Crimes Immediately Against the Community 1149 Chapter VI. Of Crimes Affecting Several of the Natural Rights of Individuals 1157 Chapter VII. Of Crimes Against the Rights of Individuals Acquired Under Civil Government 1160

PA109 Viii CONTENTS

Chapter VIII. Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred in the Commission of the Same Crime 1166 Chapter IX. Of the Direct Means Used by the Law to Prevent Offences 1170 Chapter X. Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders 1175 Bibliographical Glossary 1205 Afterword 1215 Index 1217

PA110 628 LECTURES ON LAW them, the moral sense discovers peculiar inflexibility: it dictates, that we should submit to any distress or danger, rather than procure our safety and relief by violence upon an innocent person. Similar to the restraint, respecting personal safety and security, is the restraint, which the moral sense imposes on us, with regard to property. Robbery and theft are indulged by no society: from a society even of rob- bers, they are strictly excluded. The necessity of the social law, with regard to personal security, is so evident, as to require no explanation. Its necessity, with regard to prop- erty, will be explained and made evident by the following remarks. Man has a natural propensity to store up the means of his subsistence: this propensity is essential, in order to incite us to provide comfortably for ourselves, and for those who depend on us. But this propensity would be rendered ineffectual, if we were not secured in the possession of those stores which we collect; for no one would toil to accumulate what he could not possess in security. This security is afforded by the moral sense, which dictates to all men, that goods collected by the labour and industry of in- dividuals are their property; and that property ought to be inviolable. We beheld, a little while ago, one of the principal pillars of civil law founded deeply in our nature: we now perceive the great principles of criminal law laid equally deep in the human frame. Violations of property and of personal security are, as we shall afterwards show particularly, the objects of that law. To punish, and, by punishing, to prevent them, is or ought to be the great end of that law, as shall also be particularly shown. That we are fitted and intended for society, and that society is fitted and intended for us, will become evident by considering our passions and affections, as well as by considering our moral perceptions, and the other operations of our understandings. We have all the emotions, which are necessary in order that society may be formed and maintained: we have tenderness for the fair sex: we have affection for our children, for our par- ents, and for our other relations: we have attachment to our friends: we have a regard for reputation and esteem: we possess gratitude and com- passion: we enjoy pleasure in the happiness of others, especially when we have been instrumental in procuring it: we entertain for our country an animated and vigorous zeal: we feel delight in the agreeable conception of the improvement and happiness of mankind.

PA111 COLLECTED WORKS OF James Wilson

PA112 JAMES WILSON

PA113 COLLECTED WORKS OF James Wilson

James Wilson

Edited by Kermit L. Hall and Mark David Hall with an Introduction by Kermit L. Hall and a Bibliographical Essay by Mark David Hall Collected by Maynard Garrison

VOLUME 2

PA114 This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest -known written appearance of the word "freedom" (amagi), or "liberty." It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash. Introduction, Collector's Foreword, Collector's Acknowledgments, Annotations, Bibliographical Essay © 2007 Liberty Fund, Inc. Cover art: James Wilson, etching by Max Rosenthal, 1890. From Library of Congress, Prints and Photographs Division, James Wilson Biographical File, Lc-usz62-6065. Frontispiece portrait ofJames Wilson by James Barton Longacre, after an original by J. P. H. Elouis, c. 1825, by permission of the National Portrait Gallery, Smithsonian Institution. All rights reserved Printed in the United States of America

II 10 09 o8 07 c 5 4 3 2 I

II 10 09 o8 07 P 5 4 3 2 I Library of Congress Cataloging-in -Publication Data Wilson, James, 1742-1798. [Works] Collected works ofJames Wilson/edited and with an introduction by Kermit L. Hall with a Bibliographical Essay by Mark David Hall; collected by Maynard Garrison. p. cm. Includes bibliographical references and index. ISBN -13: 978-0-86597-682-5 (hardcover-set: alk. paper) ISBN -13: 978-0-86597-684-9 (hardcover-vol alk. paper) ISBN -13: 978-0-86597-685-6 (hardcover-vol 2: alk. paper) ISBN -13: 978-0-86597-683-2 (pbk.-set: alk. paper) [etc.] 1. Law-United States. I. Hall, Kermit. II. Title. KF2I3.w5H35 2007 349.73-dc22 2006102965

Liberty Fund, Inc. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684

PA115 LECTURES ON LAW,

DELIVERED IN THE College of Philadelphia,

IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY, AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.

PA116 PA117 CONTENTS OF THE SECOND VOLUME

LECTURES ON LAW.

Part I

CHAPTER XII. Of the Common Law. 749 CHAPTER XIII. Of the Nature and Philosophy of Evidence. 792

Part 2

CHAPTER I. Of the Constitutions of the United States and of Pennsylvania-Of the Legislative Department. 829

CHAPTER II. Of the Executive Department. 873 CHAPTER III. Of the Judicial Department. 885 CHAPTER IV. Of the Nature of Courts. 943 CHAPTER V. Of the Constituent Parts of Courts.- Of the Judges. 950 CHAPTER VI. The Subject Continued. Of Juries. 954 CHAPTER VII. The Subject Continued. Of Sheriffs and Coroners. 1012 CHAPTER VIII. The Subject Continued. Of Counsellors and Attornies. 1019 CHAPTER IX. The Subject Continued. Of Constables. 1033 CHAPTER X. Of Corporations. 1035 CHAPTER XI. Of Citizens and Aliens. 1038 CHAPTER XII. Of the Natural Rights of Individuals. 1053

PA118 Viii CONTENTS OF THE SECOND VOLUME

Part 3

CHAPTER I. Of the Nature of Crimes; and the Necessity and Proportion of Punishments. 1087 CHAPTER II. Of Crimes Against the Right of Individuals to Their Property. 1118 CHAPTER III. Of Crimes Against the Right of Individuals to Liberty, and to Reputation. 113o CHAPTER IV. Of Crimes Against the Right of Individuals to Personal Safety. 1137 CHAPTER V. Of Crimes, Immediately Against the Community. 1149 CHAPTER VI. Of Crimes, Affecting Several of the Natural Rights of Individuals. "57 CHAPTER VII. Of Crimes Against the Rights of Individuals Acquired Under Civil Government. 1160 CHAPTER VIII. Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred in the Commission of the Same Crime. 1166 CHAPTER IX. Of the Direct Means Used by the Law to Prevent Offences. 1170 CHAPTER X. Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders. 1175 Bibliographical Glossary 1205 Afterword 1215 Index 1217

PA119 CHAPTER I. Of the Nature of Crimes; and the Necessity and Proportion of Punishments.

Hitherto, we have considered the rights of men, of citizens, of publick of- ficers, and of publick bodies: we must now turn our eyes to objects less pleasing-the violations of those rights must be brought under our view. Man is sometimes unjust: sometimes he is even criminal: injuries and crimes must, therefore, find their place in every legal system, calculated for man. One consolatory reflection, however, will greatly support us in our progress through this uninviting part of our journey: we shall be richly compensated when we reach its conclusion. The end of criminal jurispru- dence is the prevention of crimes. What is an injury?-What is a crime?-What is reparation?-What is punishment?-These are questions, which ought to be considered in a separate, and also in a connected, point of view. At some times, they have been too much blended. In some instances, the injury and the reparation have been lost in the crime and the punishment. In other instances, the crime and the punishment have, with equal impropriety, been sunk in the reparation and injury. At other times, they have been kept too much apart. The crime has been considered as altogether unconnected with the injury, and the punishment as altogether unconnected with reparation. In other instances, the reparation only has been regarded, and no attention has been given to the punishment: the injury only has been calculated; but no computation has been made concerning the crime. An injury is a loss arising to an individual, from the violation or in- fringement of his right. A reparation is that, which compensates for the loss sustained by an injury.

PA12O 1088 LECTURES ON LAW

A crime is an injury, so atrocious in its nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the publick. Offences and misdemeanors denote inferiour crimes. A punishment is the infliction of that evil, superadded to the repara- tion, which the crime, superadded to the injury, renders necessary, for the purposes of a wise and good administration of government. Concerning an injury and a reparation, and the measures by which each of them ought to be estimated, it will not be necessary to say much; be- cause, with regard to them, much confusion or mistake has not been in- troduced into the theory or practice of the law. Concerning crimes and punishments, and concerning the relation be- tween a crime and an injury, and between punishment and reparation, the case is widely different indeed. On those subjects, an endless confusion has prevailed, and mistakes innumerable have been committed. On those subjects, therefore, it will be proper to be full; and it will certainly be attempted-I promise not success in the attempt-to be both accurate and perspicuous. From an inattention or a disregard to the great principle-that govern- ment was made for the sake of man, some writers have been led to consider crimes, in their origin and nature as well as in their degrees and effects, as different from injuries; and have, consequently, taught, that without any injury to an individual, a crime might be committed against the govern- ment. Suppose, says one of the learned commentators on Grotius, that one has done neither wrong nor injury to any individual, yet if he has commit- ted something which the law has prohibited, it is a crime, which demands reparation; because the right of the superiour is violated, and because an injury is offered to the dignity of his character.' How naturally one mis- take leads to another! A mistake in legislation produces one in criminal jurisprudence. A law which prohibits what is neither a wrong nor an injury to any one! What name does it deserve? We have seen that a law which

a. 2. War. Bib. is. b. Ante. vol. 2. p. 1045.

PA121 OF THE NATURE OF CRIMES 1107

In every case before judgment, the Romans allowed an accused citizen to withdraw himself from the consequences of conviction into a volun- tary exile. To this institution, the former practice of abjuration in England bore a strong resemblance. This was permitted, as my Lord Coke says, when the criminal chose rather "perdere patriam, quam vitam.""4 On the same principles, a liberty was given, in Greece,to a person accused to dis- appear after his first defence, and retire into voluntary banishment-in the language of the English law, to abjure the realm after the indictment was found .v Sabacos," one of the legislators of Egypt, went still further. He abol- ished capital punishments, and ordained, that such criminals as were judged worthy of death should be employed in the publick works. Egypt, he thought, would derive more advantage from this kind of punishment; which, being imposed for life, appeared equally adapted to punish and to repress crimes"' Punishments ought unquestionably to be moderate and mild. I know the opinion advanced by some writers, that the number of crimes is di- minished by the severity of punishments: I know, that if we inspect the greatest part of the criminal codes, their unwieldy size and their ensan- guined hue will force us to acknowledge, that the opinion has been gen- eral and prevalent. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government. So far as any sentiment of generous sympathy is suffered, by a merci- less code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in the commiseration of criminals. These barbarous exhibitions are productive of another bad effect-a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, re- ceive a cheerful obedience, or secure a regular and uniform execution? The expectation is forbidden by some of the strongest principles in the human

u. Eden. 31. 14. To lose his fatherland, than his life. v. 2. Gog. Or. L. 72. Shabaka (Sabacos) ruled Egypt from 721 to 707 B.C. w. 3. Gog. Or. L. is.

PA122 1108 LECTURES ON LAW frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings. The result of those combined emotions, operating vigorously in concert, may be easily conjectured. The criminal will probably be dismissed with- out prosecution, by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified or, at least, excused in giving a verdict of ac- quittal. If convicted, the judges will, with avidity, receive and support ev- ery, the nicest, exception to the proceedings against him; and, if all other things should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment-that of recommend- ing him to the mercy of the pardoning power. In this manner the acerbity of punishment deadens the execution of the law. The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued accessions of strength and inveteracy. In the progress of his course, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another; till, at last, he necessarily becomes the victim of that preposterous rigour, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape. When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in de- tecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy of publick justice. True it is, that, on some emergencies, excesses of a temporary nature may receive a sudden check from rigorous penalties: but their continuance and their frequency introduce and diffuse a hardened insensibility among the citizens; and this insensibility, in its turn, gives occasion or pretence to the further extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law. Such a system is calculated to eradicate all the manly sentiments of the soul, and to substitute in their place dispositions of the most depraved and degrading kind.

PA123 OF THE NATURE OF CRIMES 1109

The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of the punishment. The association of ideas has vast power over the sentiments, the pas- sions, and the conduct of men. When a penalty marches close in the rear of the offence, against which it is denounced, an association, strong and striking, is produced between them, and they are viewed in the insepa- rable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period, this connexion is considered as weak and precarious, and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and spring- ing from no laudable motive. It is just, as well as useful, that the punishment should be inflicted soon after the commission of the crime. It should never be forgotten, that im- prisonment, though often necessary for the safe custody of the person ac- cused, is, nevertheless, in itself a punishment-a punishment galling to some of the finest feelings of the heart-a punishment, too, which, as it precedes conviction, may be as undeserved as it is distressing. But imprisonment is not the only penalty, which an accused person undergoes before his trial. He undergoes also the corroding torment of suspense-the keenest agony, perhaps, which falls to the lot of suffering humanity. This agony is by no means to be estimated by the real probabil- ity or danger of conviction: it bears a compound proportion to the delicacy of sentiment and the strength of imagination possessed by him, who is doomed to become its prey. These observations show, that those accused of crimes should be speed- ily tried; and that those convicted of them should be speedily punished. But with regard to this, as with regard to almost every other subject, there is an extreme on one hand as well as on the other; and the extremes on each hand should be avoided with equal care. In some cases, at some times, and under some circumstances, a delay of the trial and of the pun- ishment, instead of being hurtful or pernicious, may, in the highest de- gree, be salutary and beneficial, both to the publick and to him who is ac- cused or convicted. Prejudices may naturally arise, or may be artfully fomented, against the crime, or against the man who is charged with having committed it. A delay should be allowed, that those prejudices may subside, and that neither the judges nor jurors may, at the trial, act under the fascinating

PA124 MO LECTURES ON LAW impressions of sentiments conceived before the evidence is heard, instead of the calm influence of those which should be its impartial and deliber- ate result. A sufficient time should be given to prepare the prosecution on the part of the state, and the defence of it on the part of the prisoner. This time must vary according to different persons, different crimes, and dif- ferent situations. After conviction, the punishment assigned to an inferiour offence should be inflicted with much expedition. This will strengthen the useful association between them; one appearing as the immediate and unavoid- able consequence of the other. When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution, as will render the language of political expediency consonant to the language of religion. Under these qualifications, the speedy punishment of crimes should form a part in every system of criminal jurisprudence. The constitution of Pennsylvaniax declares, that in all criminal prosecutions, the accused has a "right to a speedy trial." The certainty of punishments is a quality of the greatest importance. This quality is, in its operation, most merciful as well as most powerful. When a criminal determines on the commission of a crime, he is not so much influenced by the lenity of the punishment, as by the expectation, that, in some way or other, he may be fortunate enough to avoid it. This is particularly the case with him, when this expectation is cherished by the example or by the experience of impunity. It was the saying of Solon, that he had completed his system of laws by the combined energy of justice and strength. By this expression he meant to denote, that laws, of themselves, would be of very little service, unless they were enforced by a faithful and an effectual execution of them. The strict execution of every criminal law is the dictate of humanity as well as of wisdom. By this rule, important as well as general, I mean not to exclude the pardoning power from my system of criminal jurisprudence. That power ought to continue till the system and the proceedings under it become absolutely perfect-in other words-it ought to continue while laws are made and administered by men. But I mean that the exercise of the par-

x. Art. 9. S. 9.

PA125 Troubled Experiment

Crime and Justice in Pennsylvania, 1682-1800

JACK D. MARIETTA AND G. S. ROWE

PA126 Copyright C 2U06 University of Pennsylvaisia Press All rights reserved Printed in the Cnitted States 1:yr Aim r ica on acid,-free paper 10911 78.5 4 3 2 I Published IA University of marwhania Press Philadelphia. Pennsylvania 191044112 ibrary of Congress Cataloging-in-PublicatiiM Data Marietta. jack D. Troubled experiment crime and justice in Perinvlt'.han.ia,, 1682-1A00 / jack D. Marietta and IL:. S. Rowe v'T. (EarlY American studies)

ISBN -1h 04122-3955-5 (alk. paper) Includes bibliographical references and index. L Crime-Pennsylvania-History--17th century. 2. Critle--PennsvIvania-Historv- 18th century. 3. Violence-Pennsylvania-History- I 7111 century_ 4. Violence- Pennsylvania-History-48th century. 5. Law enforcemen t-PerinsylYania-History- 17th century. 6. law enforeement-Permsylvania-liisto.ry-18th century. 7. Criminal iaw-Pennsylvarfre-41istory-17th century. 8 Criminal 1iw-Penissylrania--History- 18th ctntury. 9. Pell rtsylran a-History--Colonial period, ca. 1600-1775. 1. Series ii. Rowe, G. S. (Gail Stuart), 1936- HV6793.P4 MS7 2006 364,974809/05--dc22 2006042161

PA127 12 Chapter One -

These criminal laws, mirroring the social, views of die predominantly Quaker assembly that gave birth to them, seriously modified portions of the Duke's Laws while abolishing others. The result was the mildest criminal code of any continental English colony and one much milder than England's.'' Murder alone was made la capital offense, although because no provision was made for treason, that of rnse continued to be capital under the English common law. Forfeitures, corporal punish- ment, and imprisonment were substituted for capital sauctioris for such offenses as rape, sodom, bigamy, and incest,. A second conviction for these offenses carried with it life imprisonment. Attacks upon property, including thefts, arson, Forgery, and counterfeiting, were punished by having deiendants pay some multiple of the lost propertv. Few crimes brought lengthy incarceration. Swearing, profanity, playing cards or dice, promoting or engaging in unlicensed lotteries, and drunkenness, for instance, earned five-day sentences. Assaulting a magistrate brought one month's confinement. Challenging a person to a fight could lead to three months' incarceration if the cgInvicted could not pay a five -pound fiAle. Conk a conviction for incrust could bring as much as one year at hard labor.2 Despite its apparent mildness, the Great Law held some potential for harshness. Its provisions for the punishment of criminal offenses were often unduly vague or discretionary, permitting unscrupulous or hard - minded judges to exact severe penalties.23 For instance, at the discretion of two justices of the peace, servants assaulting their masters or mis- tresses were to be punished "suitable to the Nature and Circumstances of the fact." The same sentence held for general assaults and sedition,. Children physically attacking their mother or father could be confined "during the pleasure" of the parerits. Defamation was to be "severely Punished."24 The assembly which met in New Castle in March 1.684 took steps to curtail some of the discretion exercised by judges when it rati- fied a law establishing that if a statute called for whipping but failed to designate the specific number of stripes to be laid on, punishment should not exceed twenty-one lashes.a5 Still, considerable magisterial (HS- crirtion remained. PA128 Tmrainet2int etiffecnigreic WPTP i4 enroorated to ensure that justice would The Cradle of the Penitentiary

THE WALNUT STREET JAIL AT PHILADELPHIA, 1773-1835

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.

A View of Walnut Sheet Jail-a Birch Print

by NEGLEY K. TEETERS Temple University

Sponsored by the Pennsylvania Prison Society Copyright, 1955 by

Negley K. Teeters

ORLAND( one-time secretary and Th( astute

PRINTED IN U.S.A.

PA130 CHAPTER ONE

Penology in Colonial Pennsylvania

Codes 1. Early Penal was lo- first penitentiary in the world Few people realize that the structure, A relatively small stone in Philadelphia, Pennsylvania. site cated Jail, that stood on the present locally as the Walnut Street known Company building, at the corner the Penn Mutual Life Insurance of in truth, the "cradle" of the modem and Walnut Streets was, of of Sixth Julius, a distinguished student It was Dr. Nicolaus "was penitentiary. as 1839, stated that this jail from Prussia who, as early penology of reformative prison discipline."' cradle of the American system peni- the in 1773, was designated a famous old structure, erected The Assembly of Pennsylvania, dated tentiary-house by the Act of General that a act, dated April 5, 1790, provided March 27, 1789. A later which, at the up in the yard of the prison special cell block be set these two acts, Philadelphia County. Under time, served as the jail for were hence- all parts of the Commonwealth convicted felons from a part of where they were isolated for forth sent to this institution confine- types of offenders, in solitary their sentence from all other at hard labor. ment, experimentation in penology-the 1790 to 1799-a decade of From for students of penal reform Street Jail became the mecca Walnut as from Europe. Out of these parts of the country as well from various and treatment there evolved a experimental concepts of imprisonment to that was to bring fame and distinction system of penal discipline in this important field. Pennsylvania as the leader one; Street Jail is a comparatively short The history of the Walnut it was jail; from 1790 to 1835, when from 1773 to 1790 it was a county for a local jail and as the penitentiary abandoned, it served both as and P7 ison Development of American Thisons by Orlando F. Lewis, The 'Quoted p 27. Customs, 1776-1845, Albany: 1922, 1 PA131 2 THE CRADLE OF THE PENITENTIARY the Commonwealth. In due time the state erected two penitentiaries- during the decade, 1820-1830-one at Pittsburgh and the other at Philadelphia, which gradually superseded the institution at Sixth and Walnut Streets, Philadelphia. The story of this tail is indeed fascinating.' For over a hundred years previously the penal philosophy of the Commonwealth of Penn- sylvania had reflected the traditions of William Penn and the Society of Friends. The Quakers had been, and still are, distinguished by their mildness and humility, as well as for their deep concern over inhumane treatment of convicted offenders. From 1682, when Penn landed on American shores to found his new colony, to the establishment of the new country of the United States of America, the settlers of Pennsylvania followed the humane con- cepts of the Founder-aside from a period between 1718 and 1786 when the representatives of the British Crown pressed upon the peo- ple the severe Anglican penal code. This code defined thirteen capital crimes and called for the punishment of others in the stocks and pil- lory or with the application of the lash. It was after the Revolution and the establishment of the new country that the milder representa- tives of justice began their work to re-establish the reputation of William Penn and to culminate their labors with a radical new con- cept of penal treatment. It was the establishment of the "penitentiary" in 1790 that ushered in the new dispensation. However, as is so often the case, this proved to be only the beginning of a larger movement that was to change completely the prevailing attitudes of society toward the treatment of criminals. This movement envisaged the concept of imprisonment for con- victed felons to supplant the barbaric types of corporal punishment that, for so many centuries, had been the lot of those who had wronged society. Imprisonment has been taken for granted for so long that it is difficult for those living today to appreciate how novel and even radical it seemed during the colonial period of our country. It is thus that the history of the Walnut Street Jail, as well as the evolutionary development of the penal code of Pennsylvania, are so significant as a backdrop to modern thinking on penal treatment. In order to under- sTrand the importance of the Walnut Street Jail to the subject of pen- ology, it is necessary to review the status of penal philosophy during

Partial accounts of the story, especially for the period between ligo and i800, hove recently appeared. See Rex Skidmore, "Penological Pioneering in the Walnut Street jail, 1789-179g," Journal of Criminal Law and Ciiminology, July -August, 1430, pp, 167-i8o; also Le Roy De Puy. "The Walnut Street Plison, Pennsylvania's First Penitentiary," Pennsylvania History, Vol. XVIII, No. 2, April, i95i, pp. g-ig.

PA132 PENOLOGY IN COLONIAL PENNSYLVANIA 3 the earlier period of the Commonwealth of Pennsylvania. William Penn met his first assembly at Chester on December 4, 1682. There they deliberated on his Frame of Government which he had conceived before he set sail from London. The result of this conference was The Great Law or Body of Laws, consisting of sixty- one chapters that was to govern the province of Pennsylvania. It con- tained the original Quaker criminal code and marked out clearly the wide differences between Quaker practices and theories and those of the Anglicans and Puritans in operation M the other colonies and the mother country. This remarkable document opened with a declaration, very unusual at the time, that liberty of conscience and freedom of worship should be guaranteed to all who acknowledged the existence of the one true God. This eliminated at the outset the long category of religions of- fenses that marred the colonial jurisprudence of most of the other colonies as well as those of European countries. The Quakers had long abhorred the taking of human life so it was decreed that the only crimes punishable by death would be pre- meditated murder and treason. This was a radical departure from current practice throughout the world as death was the punishment for a wide variety of offenses everywhere. Unlike early Massachusetts, Pennsylvania even tolerated witchcraft. As a substitute for the death penalty and for bodily punishments, Penn decreed that felons should be imprisoned in a House of Correc- tion. He had traveled on the continent and had seen some of these institutions in operation. He compared their administration with those in and around London and determined that in his new colony those of Holland would become his pattern. In the workhouses of this little country he found a decent separation of men from women, a place for vagrants and tramps apart from those imprisoned for small offenses and for indebtedness. These houses were beehives of activity, each convict receiving compensation for work performed. Separation, in seclusion, for purposes of reflection and penitence, was the method used by the progressive administrators of these establishments.

2. The Importance of the House of Correction in Penal Practice Because much of the penal philosophy to develop in America, after the impetus contributed by William Penn, stems from the House of Correction, or workhouse, its development in England and on the continent should be reviewed. With the eclipse of the feudal system of the Middle Ages, pauper- ism and petty thievery were rampant in all of Europe. The suppres:. PA133 60 THE CRADLE OF THE PENITENTIARY

place as may accommodate ( ) heading machines, their place of confinement to be just wide enough for one, with a window in each and to be six feet wide, to have ( ) feet in front of the walls so as to keep any prisoners from coming near them."

7. Concluding Remarks While this was an extraordinary decade in pioneering, it was not entirely idyllic. There were escapes recorded: thus, from the minutes of the inspectors for September 22, 1795 we read: Wheieas on the 12th inst. one of the Keepers having the west gate open a Rush was made by the Prisoners, five of whom made their escape and all in the Yard appeared in motion. Daniel Hunter and an insurgent prisoner ex- erted himself in assisting the Keepers to secure the Gate whereby the rest was secured. Resolved that the said Hunter for his meritorious conduct and orderly behavior be recommended to the Governor for a pardon and remis- sion of his fine. Resolved that the Keeper be authorized to offer a Reward of Ten Dollars each for John Thompson, Joseph Long, James Reilly, Martin Bow and Thomas Johnson who escaped from this prison on the 22nd. inst. Shortly after this, on December 21, 1795, a single prisoner, Seth Johnson (In the docket charged with robbing the bank of Nantucket), made his escape by using a false key to let himself out of the prison. It seems from the records that Johnson had money with which he purchased the key "composed of Pewter on Block Tin" from another prisoner. A thorough investigation of this escape was, made which proved considerable laxity on the part of the keepers in not searching each prisoner when he came into the institution. Thus the Board spread on its minutes; dated December 22: That no prisoners of whatever description be locked in any of the rooms before they have been duly examined and searched by the Deputy Jailer, and that money, Trinketts, Buckles or implements of any description what- ever be taken from them and committed to the cam of the Principal Jailer until the discharge of the prisoner and that no convict shall have any inter- course whatever with a prisoner for 1'gal'. Later the question was raised regarding the disposition of clothes and other property belonging to any prisoner who had escaped and who, of course, had not claimed it. The Board (August 1796) ruled that the keepers should have such property if they assisted in the chase of said prisoners. Thus a watch belonging to the above Seth Johnson as well as some silver buckles belonging to Thomas Durnell were confiscated by one of the keepers.

56 The blanks. indicated by brackets, were blank in the Minutes

PA134 THE HEYDAY OF THE WALNUT STREET JAIL 1790-1799 61 There must have been some chagrin on the part of the Board when, on May 27, 1796, three females made off but all were subsequently returned. One of them remained absent until September 1, however, and slipped out again on August 2 of the following year." During this decade many reforms were effected by law, as well as through the changing policies of the Board. Legislative acts effecting the prison were: September 23, 1791, improvement of the lot of the debtor class; April 4, 1792, placed the keeper of the jail on a salary instead of a fee basis; April 22, 1794, abolished the death penally for all cnmes except murder in the first degree; April 15, 1795 and Feb- ruary 15, 1799, extended and perpetuated the penal codes of 1790 and 1794. In 1795 the inspectors abolished the use of the dungeons in the prison for disciphnary cases. And thus the penitentiary was born. Important as it was, it was only a crude beginning. But judged by the situation existing in the various county jails and workhouses of the country at the time, with promiscuity, idleness, debauchery and misery existing in all of them, it is no wonder that the reforms at Philadelphia were considered amazing. We need not gild the lily to say that this was indeed a re- markable era in penal reform. There were many who eagerly watched its administration and development and, on the whole, these observ- ers were fairly well satisfied during this decade from 1790 to 1799. It was the following decade in which the system began to crack and, week by week, month by month, it continued to deteriorate. Much of the social and economic life of the city of Philadelphia may be gleaned from the records of this prison As De Puy writes: "Here can be found in stark brevity the story of the servant who stole his master's silver, of the 'stubborn apprentice of 'high spirit' thrown into jail at the mere request of his master, of the seaman who jumped ship to escape his tyrannical captain; of runaway slaves and of free Negroes entangled in the white man's law; and of the unfortunate prisoner in an inland county, who, being found guilty of a trifling offense, was assigned an over-long term so as to render him eligible for the Philadelphia prison where expense to his county would be reduced by state aid."'" The "Widow Weed" resigned as keeper on July 26, 1796 and the Board bore "cheerful testimony of approbation to her conduct during the arduous and difficult duties to which she has been called." One

57 Not reported in the Minutes Sec Le Roy De Puy, "The Walnut Stieet Prison. Pennsylvania's First Penitentiaiy," Pennsylvania Histoiy, Vol. XVIII, No 2, April, 1951. p 58 Loc. rd., p. 8 PA135 JOURNAL OF THE LANCASTER COUNTY HISTORICAL SOCIETY

PUBLIC EXECUTIONS IN PENNSYLVANIA

1682 TO 1831

With ANNOTATED LISTS OF PERSONS EXECUTED; AND OF DELAYS, PARDONS AND REPRIEVES OF PERSONS SENTENCED

TO DEATH IN PENNSYLVANIA

1682 TO 1831

BY DR. NEGLEY K. TEETERS

LANCASTER, PENNSYLVANIA VOL. 64 NO. 2 SPRING 1960 PUBLISHED QUARTERLY ONE DOLLAR PER COPY 1960 PUBLIC EXECUTIONS IN PENNSYLVANIA 87

Table of Contents Early Penal Legislation in the Colony 87 Techniques and Places of Executions 92 Some Interesting Random Cases 97 Executions During the Revolution 103 Female Executions 106 The Ann Carson Smyth Story 108 Horse Thieves-None Executed 109 The Demoralization of Public Hangings 110 Efforts in Pennsylvania to Abolish Public Executions 114 Murder and Hanging Ballads 118 Statistical List of Executions by Periods 119 Notes 120 Annotated List of Those Publicly Executed in the Province and Commonwealth of Penna., 1682-1834 129 Unverified and Problematical Executions 147 Executions in Chronological Order 148 Annotated List of Delays, Pardons and Reprieves of Persons Sentenced to Death in Penna. from 1682 to 1834 153 Chronological List of Pardons, Reprieves and Delays by Name, Date of Pardon, County and Offense 160

EARLY PENAL LEGISLATION IN THE COLONY On March 15, 1688, Judith Roe of Kent County now a part of Delaware but at the time one of the "Lower Counties" of the Province of Pennsylvania - was publicly hanged for murder - victim, motive and weapon unknown. William Penn, president of the Provincial Council, but out of the country at the time,, refused her a pardon because she was a "murtherous woman and her crime notorious and barbarous."1 Her broth- er, Joseph Richardson, had begged for a pardon but without success. Whether this woman was the first person to be executed in the Pro vince cannot be accurately ascertained but so far as the data available indicate, she holds this dubious distinction.2 From that date down to April 10, 1834, when public executions were abolished, slightly more than 250 persons were taken from county jails to some local spot and hanged before large crowds of spectators.3 One hundred thirty-eight others were spared this degradation through the favor of the governor's pardon. Much has been written of the humane features of the Great Law of William Penn adopted on December 7, 1682 at Upland. As is well known, premeditated murder only was labeled capital. Penn's code, so unusual in the colonies at the time, was regarded as the wonder of the age. But only in a few years it was deemed necessary to draw up another much more drastic. Thus the Newcastle Code, created by Penn himself in 1700 and ratified in 1701, introduced such penalties as mutilations, brandings, floggings and even castration for certain offenses.4 Commenting on this amazing metamorphosis in penal philosophy, Professor Lawrence Gipson, long a student of colonial Pennsylvania writes:

PAp7 88 LANCASTER COUNTY HISTORICAL SOCIETY SPRING

From prosecuting cases of larceny, slander, swearing, Sabbath break- ing, assault and battery, drunkennes,, the selling of rum to the Indians, and immorality . . . the authorities at the close of the century and from then on were called upon to deal with burglaries, counterfeiting, highway robbery, petit treason, horse stealing, rapes, homicides, infanticides, and murders.5 As early as May 1697 Penn wrote to the Colonial Council from Lon- don that persistent rumors reaching him complained not only of crimes in low places but even among those who were charged with serious re- sponsibilities in the colony. He wrote: "There is no place more overrun with wickedness, Sins so very Scandalous, openly Committed in defiance of Law and Virtue; facts so foul I am forbid by common modesty to relate ym."6 And, as Professor Gipson records: "Pennsylvania was called in 1698 'Ye greatest refuge and shelter for pirates and rogues in America.' "7 Another facet of the ambivalence of the provincial fathers was the concern they felt for crimes committed by Negroes. As early as 1693 the courts of Quarter Sessions were empowered to direct constables

. . . against the tumultuous gathering of Negroes whom they should find gadding abroad . . . without a ticket from their Mr. or Mris fsicl or not in their company, or to carry them to gaole, there to remain the night & that without meat & drink to cause them to be publickly whipped next morning with 39 lathes well laid on their bare backs for which their said Mr. or Mris. should pay 15d to the whipper.8 Presumably following the example of the southern colonies in dealing with crime among Negroes, the Pennsylvania Council, in 1701, passed an act which placed the trials of Negroes in the hands of two specially desig- nated justices of the peace before a jury of freeholders who had power to "hear, try, and determine" the offenses of "murder, manslaughter, bug- gery, burglary, rapes, attempts of rapes, and other high and heinous enorm- ities and capital offenses."9 All of these offenses, when committed by Ne- groes, were made capital. None of the records of these special courts re- mains so we can only surmise what penalties were imposed and enforced. Surprisingly enough our own records show no Negroes subjected to the death penalty until "Joe" and "Caspar" were executed in Philadelphia some time in November 1762, and one "Phoebe" in Chester County in March 1764, all for burglary. The owner of Phoebe, one Joseph Richard son, was compensated £55 for the loss of his slave since an act passed on March 5, 1725/6 called for an appraisal "value" of slaves executed, with owners to be paid out of the public treasury.'° No doubt the owners of "Joe" and "Caspar" were also compensated for their losses. It is difficult to believe that some Negro slaves were not executed prior to the above dates especially since legislation to compensate owners was enacted so many years earlier. In addition, in neighboring Quaker West Jersey several Negroes were executed for assaultng their masters as well as for the com- mission of serious felonies. The drastic code of 1701 proved to be so repugnant to the Mother Country that its repeal was ordered by the Crown within a few years. As Herbert Fitzroy writes: 1960 PUBLIC EXECUTIONS IN PENNSYLVANIA 89

The more extreme punishments were permitted to be continued for but a few years, since in 1705 we had the rather unusual spectacle of the English Privy Council disallowing- laws of the Quaker province because of their unusual cruelty - the laws involving castration because it was "a punishment never inflicted by any law of Her Majesty's dominions," and the laws providing enslavement because "selling a man is not a pun- ishment allowed by the Laws of England."11 We have no way of knowing whether castration was actually resorted to by the courts since, of the dockets surviving, no case has thus far been re- vealed. In 1718 the colony went all out in setting up a sanguinary code. On May 31 "AN ACT FOR THE ADVANCEMENT OF JUSTICE AND MORE CERTAIN ADMINISTRATION THEREOF," designating thirteen capital crimes, was passed. These were: various degrees of treason, murder, manslaughter by stabbing, serious maiming, highway robbery, burglary, arson, sodomy, buggery, rape, concealing the death of a bastard child, advising the killing of such a child, and witchcraft.'2 With a few additions to the list of capital offenses13 there were no significant changes made in the penal code until a reforming era was ush- ered in by the passage of the Act of September 15, 1786. This act re- duced the number of capital offenses and provided for the placing of most convicted felons on the public streets and highways to perform public works. The era reached its zenith in the famous Act of April 22, 1794. This progressive piece of legislation recognized only one capital offense, that of premeditated murder. It is significant, also because it was the first to be adopted in this country to distinguish between first and second de- gree murders. Provincial Pennsylvania, to enhance further its reputation for "mild- ness," made provisions for softening the draconic sentences of the courts. These were, first, the pardoning power vested in the governor save for murder and treason which were in the hands of the Crown, and second, the benefit of clergy. The pardoning power was delegated by the governor in most instances to his council, aided often by the recommendations of the courts where the culprits were convicted. The governor also had the power to stay an execution until the case was adjudicated by royal instruc- tion. In our list of pardoned persons condemned to death, many were granted the grace provided they would leave the colony. Some, however, were not apprized of their good fortune until they were "under the gal- lows." For instance, Isaac Bradford, doomed to die on July 2, 1737, along with two others, one a woman, was pardoned provided he "did the office of executioner' on his companions in misery. This "very hard choice," so stated by the local newspaper, apparently did not bother Bradford too much because he escaped the noose. Another case, that of John Benson,, condemned to death for robbery was reprieved "under the gallows" in Philadelphia when two companions 'in crime were executed May.12, 1764. The local paper stated:

PA139 1960 PUBLIC EXECUTIONS IN PENNSYLVANIA 121

son's Daily Advertiser, Philadelphia, March 20; also the thinly disguised fic- tional account appearing in George Lippard's The Quaker City, or the Monks of Monk Hall, Philadelphia, 1845, I, 428-434; see also, Source H, 3-20 for account of his crime, also infra p. 141. 4. For rape, second offense; sodomy and bestiality by a married man; Statutes at Large, II, 8, 183; III, 202; repealed and re-enacted in 1705 with castra- tion omitted; see Lawrence H. Gipson, "The Criminal Codes of Pennsylvania," J. of Amer. Inst. of Crina. Law & Crimin., VI, 3 (1915) 323.344; citation, 330. 5. Ibid., 341. 6. CR I, 527, February 9, 1697/8. 7. Loc. cit., 341. 8. CR I, 380, July 11, 1693. 9. Statutes at Large, II, 77-79; see also, Fitzroy, loc. cit., 242-209, especially 254, fn. 47. For a contrast with colonial East and West Jerseys see Henry B. and Grace M. Weiss, An Introduction to Crime and Punishment in Co- lonial New Jersey, Trenton: The Past Times Press, 1960. 10. Ashmead, History of Delaware County, 1884, 165. Later "Negro" Jack Dur- ham's master, Andrew Long of Southampton Township, Franklin County, was compensated $80 when his slave was executed for rape on July 8, 1788; see I. H. McCauley, Historical Sketch of Franklin County, 1878, 58-60; and, following the execution of "Negro" Dan Byers at Bellefonte, Centre County on December 13, 1802, his owner was compensated in. the amount of $214; see John Blair Linn History of Centre & Clinton Counties, 1883, 44-5. IL Loc. cit., 250. 12. As enumerated by Harry Elmer Barnes, The Evolution of Penology in Penn- sylvania, Indianapolis: Bobbs, Merrill, 1927, 39. This act Will be found in Stat- utes at Large; III, 199214. For an explanation why this drastic code was introduced and adopted, see Barnes 37-8. A word about witchcraft is in or- der. There were only three cases of alleged witchcraft, all prior to 1718 when the offense was made capital. The first two were those of Margaret Matson and Getro Hendrickson (CR I, December 27, 1683, 94-6) with no decision except that bonds had to be posted to keep the peace; and a third, that of Robert Guard and his wife who were accused of being witches "by malicious persons" (John Richards, Butcher and wife Ann); however the case was dismissed, the evidence being too flimsy (CR 11,, March 21, 1701, 20). These cases are discussed briefly by John Fanning Watson in his Annals I, 265-6, 274-5 (Elijah Thomas edition, 1857). 13. Counterfeiting was made capital by the Acts of September 21, 1756 and .February 21, 1767. Other offenses made capital were riotous assembly, Stat- utes at Large VI, 325-8; refusing to remove from Indian lands, S.L. VII, 152 (1768); going around in disguise, S.L. VII, 350.2 (aimed at "Black Boys" who blackened their faces and roved the frontier robbing, stealing, and rescuing felons from jail; see Fitzroy, loc. cit., 252 f.n. 42); burning the State House, libraries or other public buildings, S.L. VIII, 183. It is im- portant to note that, contrary to general belief, horse stealing was never made a capital crime (see page 109). Robbery was not made capital until 1780 (See S.L. X, 110). For Act of September 15, 1786, see S.L. XII, 280.3; for an analysis of the act, see Barnes, 107. For the Act of April 22, 1794, see S.L. XV, 174-181 and for analysis, Barnes, 107-110. 14. For news story of the Bradford case, see the American Weekly Mercury, June 30 - July 7, 1737; the two executed at the time were Catherine Connor and Henry Wildeman, both for burglary. For the Benson case, see the Penn- sylvania Gazette, May 17, 1764, page 2; those executed at the time were Handenreid and John Williams. 15. The one receiving the pardon was Jacob Dryer; the one executed was Robert Elliott; for the Elliott case, see p. 1-35.

PA140 CLEMENCY IN PENNSYLVANIA

Historical perspective of

the clemency function.

Review of case law.

Present practice in

the Commonwealth of

Pennsylvania.

Recommendations

for change.

1973

National Council on Crime and Delinquency Survey and Planning Center 508 Littlefield Building Austin, Texas 78701

PA141 poli- ;and in those cases to grant reprieves until our pleasure may be known therein, ax them. and to do all and every other thing, and things which unto the complete establish-

)e the ment of justice ... do belong."81 The charter reserved to the crown the right

;rant in appeals and required to determine that Penn's laws "be not repugnant or con- othe trary, but as near as conveniently may be agreeable" to the laws in England.

An attempt was made to make the latter provision enforceable by empowering the

king to declare null and void any law passed in the province. No other propri- a etary or corporate colony had such a charter provision, one which might have

proved even more restrictive if Penn's friends in the government had not suc-

: and ceeded in inserting a clause allowing the colonists five years to transmit a rsua- law after its passage.82 prietar

terms England's continuing internal conflicts had had a strong effect on criminal almost law. Capital offenses, which had numbered eleven at the time of Bracton and on re - thirty-one during the reign of Elizabeth, had increased to fifty-eight by 1680. re that. Prisoners in felony cases were denied counsel except for the argument of special

Ze and questions of law arising during the trial, and then only by the sufferance of

11 and the judges. It was a misdemeanor to help a prisoner on trial, even by whisper- intent ing a word to him. There was no right to call witnesses for the defense, and

if called, they were not usually sworn. No right of new trial was recognized,

and there was no appeal except to the clemency of the king. Jurors could be,

Eficers, and often were, fined or imprisoned if they granted an acquittal not sanctioned freemen," by the judges. The only countervailing force in the English law of the time gment was the long -recognized doctrine of judicial reprieve, according to which judges untry were not bound to the law but could remit or mitigate punishment according to

Opted; the circumstances of a case or their own humane impulse of the moment.83

1.25 PA142 From his study of English law, and of the Duke of York's' laws which had pre -

viously governed part of his new province, Penn concluded that the multitude

of offenses and the severe punishments listed under them were not only unrea-

sonable and intolerable, but inapplicable and insufficient. In 1683, he and

his counselors prepared a code of criminal laws in which capital punishment

was prescribed for only two crimes: treason and premeditated murder.84 The

code was duly enacted, approved by the freemen and transmitted to England where

it was immediately disallowed by the king's Privy Council. The colonists re-

enacted it, and the resulting conflict continued for many years.

In 1700, the Privy Council similarly rejected a law permitting affirmations

in place of oaths. Some judges and other colonial officials not only refused

to be sworn but permitted others to affirm as well, to the end that courts

were not held as usual and convictions, when had, were attacked as unlawful.

Criminal sentences were imposed with no certainty of execution because so

many were questionable under either the colonial laws or the laws of England.

Acts were passed by the provincial legislature, vetoed by the king in council,

re-enacted and re -vetoed. Within a few years, conditions had become intoler-

able. In 1718,- David Lloyd, Chief Justice of the province, prepared a compro-

mise act recognizing the right to affirm, but also declaring in force a long

list of English criminal laws previously omitted from colonial penal codes.

The act further provided, however, that the accused should be entitled to chal-

lenges, have learned counsel assigned him, and could compel attendance of his

witnesses, who would be sworn or affirmed in the same manner as the witnesses

for the prosecution.85 The moderate substantive views put forth by Penn

were thus set aside in favor of the more immediately apparent need for

,1 1.26 PA143 reform. Although the succeeding half century saw a number of rocedural re- right up to iOdifications of the act, it remained substantially unimproved ude 4he outbreak of the revolution. In 1776, there still remained eighteen rea- crimes, and the death penalty for a second conviction for primary capital and on the first of larceny.86 every felony not capital with the sole exception nt

The Like most laws not in concert with the sentiments of the people whose where actions they are intended to regulate, the sanguinary provisions of the re - compromise Act of 1718 were irregularly enforced and frequently mitigated

by other means, especially executive clemency. Burglary, a capital offense

under the 1718 code, was rarely charged and convictions were even more rare. as From the passage of the act to 1774 there were only seventy-three convictions, lsed thirty-seven of which were pardoned. Horse -stealing provides an even more

obvious example. During the same period, a total of three convictions were 11. obtained and all of them were pardoned.87 Among the priorities mandated by

the state's first constitution, adopted September 28, 1776, was a reform of and the penal code along the lines of that originally proposed by William Penn.88 icil,

Ler- Executive Ctemency in the United Statu vro- When the colonies made their decision to break with England, the authors of ong the new state constitutions were faced with the problem of finding a new

basis for the pardoning power to replace the English theory that it resided chal- in the king as a royal prerogative. In general, it was assumed that the his power to pardon, like all powers of government, resided in the people. Con- :ses flicts arose, however, around the question of which branch of the people's

government was to exercise it for them.

1.27 PA144 This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. Google. books https://books.google.com

PA145 NOTICE S

OE THE

ORIGINAL, AND SUCCESSIVE EFFORTS,

TO IMPROVE THE DISCIPLINE

OE THE

PRISON AT PHILADELPHIA,

AND

TO REFORM THE CRIMINAL CODE OF VennogItania:

WITH A FEW OBSERVATIONS ON THE PENITENTIARY SYSTEM.

BY ROBERTS VAUX.

"The penal law should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of man-

. kind." BLACKSTONE'S COM. B. IV. C. I.

PHIL.IDELPHIA:

PUBLISHED BY KIMBER AND SHARPLESS, No. 93 Market Street.

I.. Fs' Co. Printers. 1826.

Digitized by Goo. Eastern District of Pennsylvania, to svit:

BE IT REMEMBERED, That on the thirteenth day of January, in the fiftieth year of the Independence of the United States of America, A. D. 1826, KINBER Et SHAILPLISS, of the said district, have deposited in this office the title of a Book, the right whereof they claim as Proprietors, in the words following, to wit : " Notices of the original, and successive efforts, to improve the discipline of the prison at Philadelphia, and to reform the criminal code of Penn- sylvania : with a few observations on the penitentiary system. By Ro- berts Vaux. " The penal law should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind."....Blackstone's Com. B. iv. C. i."

In conformity to the Act of the Congress of the United States intituled, "An act for the Encouragement of Learning, by securing the copies of maps, charts, and books, to the authors and propretors of such copies, du- ring the times therein mentioned ;"-And also to the act, entitled, "An act supplementary to an act, entitled, An act for the encouragement of learn- ing, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned,' and extend- ing the benefits thereof to the arts of designing, engraving, and etching his- torical and other prints." D. CALDWELL, Clerk okthe Eastern District of Pennsylvania.

PA147 NOTICES, &c.

It will not, at this enlightened period, be de- nied, that one of the first duties, as well as the true policy, of every government, is to adopt measures for the prevention of crime; nor that the most powerful instrument for effecting this important object is universal education. To make men familiarly acquainted with their religious and moral obligations, and with the in- fluence of these great principles, when habitu- ally observed, upon their individual respectability and happiness; and to develop their physical and intellectual resources, and direct them to the at- tainment of the certain rewards of honest in- dustry and sober economy ; have uniformly been found the most effectual means of inte- resting every member of society in its good or- der and welfare, and of enabling all to estimate justly the ennobling privileges of virtue and in- dependence. When, after the rude age in which offences were avenged at the will and by the power of the injured party, governments at length became

PA148 4 the arbiters of private wrongs, had plans been devised for improving the minds of men, rather than for inflicting upon them the most barba- rous punishments for transgression, what an in- finite waste of blood, by wanton and debasing cruelties, would have been prevented, in every country of ancient and modern Europe. History establishes the fact, that accelerated improvement has every where attended the miti- gation of penalties ; and that, in proportion as the laws have become less sanguinary and vin- dictive, crimes have decreased in number and atrocity. The code of Alfred, which was a master -piece of judicial polity, set a just value on the life of man : and a tender regard for that temporal ex- istence, which Deity only can confer, has never impaired the security of person or of property, nor diminished the power or dignity of govern- ments that have been cautious in shedding hu- man blood. On the contrary, the administration of justice is more uniform and certain, and so- cial order better preserved, when punishments are mild and sure. The great law given by Penn, upon the banks of the Delaware, has been not less remarkable for its beneficial influence upon the character and condition of society, in the Western hemis- phere, than was the code of Alfred, enacted on

PA149 5 the shores of the Thames, upon those of Britain and of Europe. The Pennsylvania lawgiver, regardless of most of the statutes of England which had been in force down to the reign of Charles the Second, employed his highly gifted mind in incorporating, with the frame of his government, a criminal code, which he believed to be judicious and prac- tical; and although its provisions have since un- dergone some changes in form, its great features have remained, not only to distinguish and adorn the land of his affection, then contemplated by him as the " seed of a nation," but to extend its benefits to the remotest confines of the Ameri- can confederacy. The admirable system of the founder of Penn- sylvania, from its first promulgation to the present hour, has carried conviction to the un- derstandings of the most enlightened and dis- tinguished men in America and in Europe, who have never ceased to bestow the highest com- mendation on the individual who possessed- the wisdom to devise, and the firmness to avow, principles, which are calculated to enlarge the dominion of reason and humanity, and to place the institutions of society upon the broad and sure foundation of the Christian religion. These philanthropic principles, however, were too much in advance of the age in which they were

PA150 6 embodied, to receive the sanction of the parent government ; but, notwithstanding their repeal by the Queen and Council, the same laws were re-enacted by the freemen of the Province, and remained in operation until the death of their benevolent author, in 1718. During thirty-five years' application of this mild system, no evidence exists, that offences were of a more flagitious nature, or of more frequent cccurrence, than in the neighbouring Colonies, where rigorous penalties were inflict- ed: on the contrary, it is believed, that its effi- cacy was acknowledged to contribute, in an enviable degree, to the prosperous administra- tion of Pennsylvania. Under the rule of Sir William Keith, and other successive Governors, the sanguinary laws of the mother country again prevailed, and gra- dually brought about all the evils characteristic of the criminal law, up to the period of .the re- volution. Although the excellent code of Penn ceased with his existence, the exalted sources of reli- gion and reason, whence it was derived, were happily beyond the control of human caprice and power. His example encouraged other minds, happily imbued with the same principles, to devote themselves to the production of simi- lar results, in more modern times.

PA151 7 To those meritorious pioneers, most of whom have gone down to the grave, Pennsylvania is largely indebted for the reformation of her cri- minal, jurisprudence; and their faithful and dis- interested labours deserve to be recorded, for the information and instruction of present and future generations, since they exhibit the unos- tentatious triumph of benevolence over the er- rors and prejudices of centuries. In order to unfold the nature of the difficul- ties to be encountered in the first attempt to change the penal code of Pennsylvania, and to show how arduous was the task of the original volunteers in this interesting cause, it will be ne- cessary to exhibit the principal criminal offences then known to the law, and the punishments an- nexed to them respectively. They were, Murder, Treason, Robbery, Burglary, Rape, Death, by Arson, hanging. The crime against nature, Malicious maiming, Manslaughter, Counterfeiting bills of credit, or the current coin.

PA152 8 Various minor offences were punished by whip- ping, the pillory, cropping, branding with a hot iron, and public labour with chain and ball at- tached to the prisoner, 85c. Of this shocking catalogue of unjust and cruel penalties, few men, it may be supposed, would have the resolution to undertake the removal, especially when the actual condition of the pri- son, and the mode of treating the prisoners, are considered; for it must be kept in mind, that for nearly all the crimes which have been enume- rated, it was proposed to commute the punish- ment for solitary confinement and hard labour. The first individual, unconnected with the ad- ministration of the criminal laws, who appears to have given attention to the inhabitants of the jail, then situated at the south-west corner of High and Third streets, was a benevolent and independent citizen,* residing in that neighbour- hood; who, before the revolutionary war, was in the practice of causing wholesome soup, pre- pared at his own dwelling, to be conveyed to the prisoners and distributed among them. This fact indicates the wretched condifibn of the objects of his liberality, as it cannot be presumed that such an interposition would have taken place, but from a full conviction of its absolute necessity.-

* Richard Wistar; he died in 1781, aged 54 years.

PA153 9 Whether this circumstance led to a more gene- ral notice of the state of the jail and of its in- mates, cannot now be ascertained, but it is highly probable it had an influence in producing the first association, formed in any country, for in- vestigating the condition of prisoners, and for affording them relief, as the natural and happy precursor of the important changes in punish- ments, which, as will hereafter be seen, was sub- sequently effected by an institution of similar character. On the 7th of February, 17761 a society was formed, under the name of " The Philadelphia Society for assisting distressed Prisoners." A considerable number of citizens became mem- bers of it, and paid an annual subscription of ten shillings, each. The managers of this body af, forded some relief during a short career, which, from the following record, (the only one known to exist,) appears to have terminated in about nineteen months. " The British army having entered the city of Philadelphia in September, 07770 and possessed themselves of the public jails, no further service could be rendered, nor was any election held this month, for the ap- pointment of new managers, so that the Phila- delphia Society for assisting distressed Prisoners, was dissolved during this memorable period." Signed, " RICHARD WELLS, Sec'ry." B

PA154 10 During the remainder of the war, this good work was necessarily suspended, except that the Convention of Pennsylvania proclaimed, that an alteration should be made in the penal laws of the Commonwealth-a measure which grew out of the new form of the government. The first amelioration of the criminal code, as subsisting before the revolution, was accomplish- ed by an act of assembly, passed on the 15th of September, 1786, when robbery, burglary, and the crime against nature, were made punishable with servitude, at hard labour, instead of death. This dawn of legislative mercy to criminals in Pennsylvania, deserves to be as gratefully com- memorated as it was then joyfully hailed. On the 8th of May, 1787, a number of citi- zens assembled at the German School House, on Cherry street, and constituted themselves "The Philadelphia Society for alleviating the miseries of Public Prisons." Their motives and purpo- ses are thus explained, in the preamble and sy- nopsis of the constitution.

-I was in prison and ye came unto me." "- and the King shall answer, and say unto them, verily I say unto you, inasmuch as ye have done it unto one of the least 'of these my brethren, ye have done it unto me." Matthew xxv. 36, 40. " When we consider that the obligations of benevolence, which are founded on the precepts

PA 155 11 and example of the author of Christianity, are not cancelled by the follies or crimes of our fel- low creatures; and when we reflect upon the miseries which penury, hunger, cold, unnecessa- ry severity, unwholesome apartments, and guilt, (the usual attendants of prisons,) involve with them, it becomes us to extend our compassion to that part of mankind, who are the subjects of these miseries. By the aids of humanity, their undue and illegal sufferings may be prevented; the links which should bind the whole family of mankind together, under all circumstances, be preserved unbroken; and such degrees and modes of punishment may be discovered and suggested, as may, instead of continuing habits of vice, become the means of restoring our fel- low creatures to virtue and happiness. From a conviction of the truth and obligation of these principles, the subscribers have associated them- selves," 4c. Officers:-A President, two Vice Presidents, two Secretaries, a Treasurer, four Physicians, an electing and an acting Committee. Contribution of each member, ten shillings* per annum. The principal duties of the acting committee were to visit the public prisons, or such other places of confinement as were ordained by law, at least once

.1' Reduced to one dollar annually in Mg.

PA156 12 every week; to inquire into the circumstances of the persons confined; to report such abuses as they should discover; to examine the influence of confinement or punishment upon the morals of the persons who were the subjects of them. They had authority to draw on the treasurer for such sums of money as should be necessary to carry on the business of their appointment. The physicians, to visit the prisons when called on by the acting committee, and give their advice respecting such matters as were connected with the preservation of the health' of persons con- fined, 85c. On the day of the adoption of this constitu- tion, the society elected its officers and commit- tees, who proceeded to an immediate fulfilment of their important and benevolent duties. It is much to be regretted, that the first mi- nutes of the acting committee, which contained, doubtless, a mass of intelligence which would now be deeply interesting, cannot be found. Re- course has therefore been had to a few of the venerable persons, who, after a lapse of almost forty years, survive to relate some of the occur- rences connected with their early labours in this field of beneficence and patriotism. Their re- presentations of the condition of the jail, and of those confined in it when their visits com- menced, are truly appalling. A brief sketch of

PA157 13 these will serve to prove at once the immense difficulties of the undertaking, and the moral courage which must have been exerted to over- come them. The prison, as already stated, was at the corner of High and Third streets, then nearly in the centre of the population of the city. It is said to have been an injudiciously contrived building, with a subterraneous dun- geon for prisoners under sentence of death.- What a spectacle must this abode of guilt and wretchedness have presented, when in one com- mon herd were kept, by day and by night, pri- soners of all ages, colours, and sexes! No sepa- ration was made of the most flagrant offender and convict, from the prisoner who might per- haps be falsely suspected of some trifling mis- demeanor;-none of the old and hardened cul- prit, from the youthful and trembling novice in crime;-none even of the fraudulent swindler, from the unfortunate and possibly the most esti- mable debtor; and when intermingled with all these, in one corrupt and corrupting assemblage, were to be found the disgusting object of popu- lar contempt besmeared with filth from the pil- lory-the unhappy victim of the lash streaming with blood from the whipping post-the half na- ked vagrant-the loathsome drunkard-the sick suffering with various bodily pains-and too often the unaneled malefactor, whose precious hours

PA158 14

of probation had been numbered by his earthly judge. Some of these deplorable objects, not entirely screened from the public eye by ill constructed walls, exposed themselves daily at the windows, through which they pushed out into the street bags and baskets, suspended upon poles, to re- ceive the alms of the passenger whose sympathy might be excited by their wails of real or affect- ed anguish, or if disappointed, they seldom fail- ed to vent a torrent of abuse on those who were unmoved by their recitals, or who disap- proved of their importunity. To increase the horror and disgust of the scene, the. ear was continually assailed by the clank of fetters, or with expressions the most obscene and profane, loudly and fiercely uttered, as by the lips of de- mons. The keeper derived his appointment from the Sheriff of the city and county of Philadelphia; and had been for many years retained in office, on account of his supposed competency for a charge so disagreeable, as to excite neither de- sire nor competition on the part of persons bet- ter qualified to occupy the station. Indeed the circumstances, under which the incumbent had been long connected with criminals, caused him to be suspected of a more intimate knowledge of the depredations committed in the city, than

PA159 15 comported with that unblemished reputation which ought to belong to such an officer. Whe- ther justly suspected or not, certain it is, that he viewed the first interference of the members of the society, as altogether improper and unneces- sary, and contrived to interp'ose every possible obstacle to the prosecution of their plans; a de- portment which went far to confirm the unfa- vourable opinions entertained of his character. An anecdote, related by one of the acting com- mittee, exhibits at once the dispositions of the jailer, and a specimen of the arts to which he resorted for deterring the members of that body from the discharge of their duties. The gen- tleman alluded to was a clergyman,* who, believ- ing that benefit would result to the prisoners from an occasional sermon, called on the keeper to inform him of his intention to preach " on the following Sunday." This proved most un- welcome intelligence to the keeper, who instant- ly declared that such a measure was not only fraught with peril to the person who might de- liver the address, but would involve also the risk of the escape of all the criminals, and the con- sequent pillage or murder of the citizens. To this the clergyman answered, that he did not an- ticipate such a result, and for himself he did not

The late William Rogers, D. D.

PA16O 16 apprehend even the slightest injury. Leaving, however, the keeper utterly unconvinced, he waited upon the Sheriff, who, on being told what had passed, issued a written order to the jailer, to prepare for the intended religious service. At the appointed time the clergyman repaired to the prison, and was there received with a re- serve bordering on incivility. The keeper re- luctantly admitted him through the iron gate, to a platform at the top of the steps leading to the yard, where a loaded cannon was placed, and a man beside it with a lighted match: The mot- ley concourse of prisoners was arranged in a solid column, extending to the greatest distance which the wall would allow, and in front of the instrument prepared for their destruction, in the event of the least commotion. This formi- dable apparatus failed to intimidate or obstruct the preacher, who discoursed to the unhappy multitude for almost an hour, not only unmo- lested, but, as he had reason to think, with ad- vantage to his hearers, most of whom gave him their respectful attention, and all behaved with much greater decency than he expected. This sermon, it is asserted, was the first ever deliver- ed to the whole of the prisoners in Philadel- phia, and perhaps it preceded every attempt of the kind in any other city. Be that as it may, the duty in this case was performed under very

PA161 17 extraordinary circumstances. Not long after- wards, when Bishop White, the President of the society, was about to officiate in the same pri- son, the keeper, with similar designs, very sig- nificantly advised him to leave his watch on the outside of the gate -way, lest it should be pur- loined ; but the intimation was disregarded, and the service administered without molestation. Another proof of the violent and sturdy oppo- sition which the members of the society must have habitually encountered, in their intercourse with the jail, from the refractory temper of a man who could even set at naught the sovereign- ty of the state, is found in the following extract from the minutes :-« Although an order was issued, three days since, by the Supreme Execu- tive Council, that Barrack Martin (a negro under sentence of death, but who had been pardoned,) should be released from his irons, yet they had not been removed." Notwithstanding the discountenance of the jailer, a subject rather of ridicule than anger, the members of the acting committee persevered in visiting the prison, alleviating the miseries of its inhabitants, and at the same time making themselves acquainted with all the iniquity of the system which it was the purpose of the so- ciety to expose and reform. As the public attention became gradually

PA162 18 awakened to the arduous labours of the few founders of the society, they were encouraged in their noble aims by accessions to their num- ber, and by donations in money. As early as the third meeting, it is recorded that John Dick- inson, late President of the State, proposed transferring certain ground rents for the benefit of the institution. At the ensuing sitting, the members were gra- tified by the reading of a letter from Dr. John Coakley Lettsom, of London, to Dr. Benjamin Rush, giving an account of journeys then re- cently performed by the celebrated John Howard along the borders of the Mediterranean, whither he went to promote the relief of prisoners. The instruction communicated in this epistle renders it worthy of preservation.

On Howard's return from Turkey, he refused any public honours, which put a stop to the increase of the fund under his name; out of fifteen hundred pounds subscribed, above five hundred pounds have been reclaimed. Of the appropriation of the residue we cannot yet conclude, but my ideas will appear from the Gentleman's Magazine enclosed, in which I have grafted part of thy letter. Though Howard absolutely refused the public honour, he seemed highly gratified by the spirit of the nation, and truly sensible of the grateful sense of his la- bours. I was closeted with him three hours, soon after his re- turn, and though I have introduced to him persons of fashion, title, and respect, he remains immoveably fixed against all en- treaties to admit of public honour. He has not published any account of his Asiatic tour, as it must be illustrated with at least thirteen plates, and he remained here scarcely a month

PA163 19 before he set off for Ireland, in which kingdom he is now em- ployed in visiting the prisons ; but his papers, he informed me, were in readiness for the press. Happily he had duplicates of his remarks, and these were kept in different trunks ; with these he travelled safely through different regions, till he arriv- ed in Bishop's Gate street, London, and just as he got out of the stage to take a hackney coach, into which he was removing his trunks, one was stolen, and has never since been recovered: besides a duplicate of his travels, it contained twenty-five gui- neas and a gold watch. A friend of mine who visited New - gate the next day, was told by a convict (such intelligence and communications have they) that the papers were all burnt. Of the lazaretto at Marseilles, he had no duplicates, and luckily the drawings were in the preserved trunk. Howard told me he valued them so highly, that had they been stolen, he would have returned to Marseilles to acquire new ones. To enter this place is forbidden to strangers, and it was by a singular strata- gem that he got in nine days successively, without being dis- covered. Having heard at Marseilles that an English protes- tant was confined in a prison at Lyons, into which the intrusion of a stranger was always punished with confinement to the gal- leys for life, the difficulty of access only stimulated the enthu- siasm of Howard. He learned, as well as he could, the differ- ent turnings and windings that led to the prisoner he more particularly wished to visit. Howard is a little man, of extenu- ated features, who might pass for a Frenchman. He dressed himself like a Frenchman, with his hat under his arm, and passed hastily by twenty-four officers, and entered the very apartment he wished to see, without suspicion. He disclosed the secret to an English minister at Lyons, who advised his immediate departure, as he would inevitably be discovered if he remained at Lyons all night. He therefore departed hastily and got to Nice. When he arrived at Paris it was almost ele- ven o'clock at night ; he had concluded to depart at three in the morning, by the Brussels stage, and to the inn he sent his baggage, and hoping to get an hour or two's sleep, he went to bed. He had scarcely fallen asleep before his room door was forced open, and in stalked a formal dressed man, preceded by

PA164 20 a servant bearing two lighted candles, and solemnly interrogat- ed him in French to this purpose :-Are you John Howard ? I am, replied the Englishman. Did you travel with such a per- son ? I do not know any thing of him, said Howard. The question was again repeated, and the same reply (but with some warmth) was given to it. The personage left the candles on a table and departed : immediately Howard dressed himself and stole to the Lyon'sThotel ; he heard of two messengers in pur- suit of him, but he arrived at Brussels undiscovered. "At Vienna he purposed to remain two days, but the Emperor Joseph, hearing of his arrival, desired to see him ; but as he had found his prisons upon a bad plan, and badly conducted by per- sons in high trust, Howard evaded an interview at first ; but Joseph sending him a message that he should choose his own hour for an interview, the Englishman consented to the Empe- ror's request. The moment that Howard was announced, he quitted his secretaries and retired with him to a little room, in which there was neither picture nor looking -glass. Here Jo- seph received a man who never bent his knee to, nor kissed the hand of, any monarch ; here he heard truths that astonished him, and often did he seize hold of Howard's hand with inex- pressible satisfaction and approbation. " You have prisoners," said Howard, "who have been confined in dungeons without see- ing day light for twenty months, who have not yet had a trial, and should they be found innocent, your majesty has it not in your power to make compensation for the violated rights of hu- manity." To the honour of this great prince be it remember- ed, that alterations were made in the prisons before Howard's departure." The first public appeal of the institution, for pecuniary assistance, was, with equal delicacy and eloquence, made on the 16th of August, 1787, in the following terms: " To the Friends of Humanity. "The Society for alleviating the miseries of Public Prisons, beg leave to solicit the attention of the public to the objects of their institution.

PA165 21

" From the weakness and imperfection of all governments, there must necessarily exist in every community certain por- tions of distress, which lie beyond the reach of law to prevent or relieve. To supply this deficiency in Philadelphia this so- ciety was instituted, and if a judgment be formed of its future usefulness from the success that hath attended its first efforts, there is reason to believe it will prove a blessing to our city, not only as the means of relieving distress, but likewise of pre- venting vice. The funds of the society at present are confined to an annual subscription from each of its members, and a ground rent of fourteen pounds, the donation of John Dickinson, Esq. These sums are by no means equal to the numerous objects and extensive wishes of the society. They have therefore taken this method of soliciting further benefactions from their fellow citizens. To a people professing Christianity, it will be suffi- cient only to mention that acts of charity to the miserable te- nants of prisons are upon record among the first of Christian duties. From the ladies, therefore, whom heaven has blessed with affluence, and the still greater gift of sympathy-from gen- tlemen, who acknowledge the obligations to humanity-from the relation of our species to each other in a common and uni- versal Father-and from the followers of the compassionate Saviour of mankind, of every rank and description, the Society thus humbly solicits an addition to their funds. " Signed by order. " WILLIAM WHITE, President." The law of 1786, although in many respects less sanguinary than the former enactments, con- tained some provisions, the execution of which led to most injurious consequences. It directed that a certain description of convicts should be employed in cleaning the streets of the city and repairing the roads in its neighbourhood ; and authorised the keeper of the jail to shave the heads of the prisoners, and otherwise to distin-

PA166 22 guish them by an infamous dress. In this very objectionable manner they were brought before the public. The sport of the idle and the vi- cious, they often became incensed, and naturally took violent revenge upon the aggressors. To prevent them from retorting injuries still allow- ed to be inflicted, they were encumbered with iron collars and chains, to which bomb -shells were attached, to be dragged along while they performed their degrading service, under the eye of keepers armed with swords, blunder- busses, and other weapons of destruction. These measures begot in the minds of the criminals and those who witnessed them, disrespect for laws executed with so much cruelty, and did not fail to excite the early notice of the society. A committee was therefore appointed "to in- quire into the ejects of the lately enacted penal law on the criminals, now at work in our streets, and also its influence on society," who speedily reported an essay of a memorial, which being approved, twenty-four members were deputed to procure to it the signatures of the citizens.

"To the Representatives of the Freemen of the Common. wealth of Pennsylvania, in General Assembly met. " The Representation and Petition of the subscribers, citizens of Pennsylvania.- "Your petitioners have viewed with pleasure the act of a form- er Assembly, for the reforming of the penal laws of the state, by rendering them 44 less sanguinary and more proportionate to

PA167 28 crimes," and though your petitioners conceive that the good ends thereby intended, have not hitherto been fully answered, yet they presume to suggest that the' mode of punishment adopt- ed in the "act for amending the penal laws," will be more likely to answer the desired purpose, by means of some amend- ments ; a few of which your petitioners beg leave to lay before the house. " The punishment of criminals by " hard labour publicly and disgracefully imposed," as indicated in the preamble to tha,law, your petitioners wish the house would be pleased to revise, be- ing fully convinced that punishment by more private or even solitary labour, would more successfully tend to reclaim the un- happy objects, as it might be conducted more steadily and uni- formly, and the kind and portion of labour better adapted to the different abilities of the criminals; the evils of familiariz- ing young minds to vicious characters would be removed, and the opportunities of begging money would be prevented; for although the criminals are forbid to have money in their pos- session, yet no penalty is inflicted on persons furnishing them therewith. " Your petitioners also would wish to recommend to the atten- tion of the house the very great importance of a separation of the sexes in the public prisons-and that some more effectual provision be made for the prohibition of spirituous liquor amongst the criminals, the use of which tends to lessen the true sense of their situation, and prevents those useful reflections which might be produced by solitary labour and strict tempe- rance. . Your petitioners therefore respectfully request the house will be pleased to take the penal law under their consideration, and make such provision thereon as may more effectually answer the good and humane purposes thereby originally intended." Such was the modest, but forcible application which the society was instrumental in bringing before the representatives of the people of this Commonwealth, and to this measure Pennsylva-

PA168 24 ia owes all the subsequent improvements in her prison discipline and penal laws, which have attracted the approving notice of statesmen and philanthropists, throughout the civilized world. The society had by this time acquired so re- spectable a standing as to insure to it a power- ful influence, which was strenuously exerted on every occasion, to press its generous and judi- cious plans to completion: To enlarge its knowledge of efforts in some respects similar to its own, in Europe, a corres- pondence was commenced with the indefatiga- ble Howard, to whom the following communi- cation was addressed : "Philadelphia, January 14, 1788. To JOHN HOWARD. "The Society for alleviating the miseries of Public Prisons, in the city of Philadelphia, beg leave to forward to you a copy of their consti- tution, and to request, at the same time, such communications from you upon the subject of their institution, as may favour their designs. The Society heartily concur with the friends of humanity in Europe, in expressing their ob- ligations to you for having rendered the misera- ble tenants of prisons the objects of more gene- ral attention and compassion, and for having pointed out some of the means of not only al- ,

PA169 25 leviating their miseries, but of preventing those crimes and misfortunes which are the causes of them. " With sincere wishes that your useful life may be prolonged, and that you may enjoy the plea- sure of seeing the success of your labours in the cause of humanity, in every part of the globe, we are, with great respect and esteem, your sincere friends and well wishers. " Signed by order of the Society. " WILLIAM WHITE, President."* The meeting at which this letter was adopted, in order to disseminate information calculated to enlighten the community respecting its favourite purpose, instituted a committee to print, and gra- tuitously distribute, a pamphlet which had re- cently appeared, entitled "Thoughts on the con- struction and polity of Prisons," copies of which were ordered to be presented to each member of the council and assembly of the state. On

Of the usefulness of this society, the benevolent Howard thus expresses himself in one of his published works :-" Should the plan take place during my life, of establishing a permanent charity under some such title as that at Philadelphia, viz: " Society for alleviating the miseries of Public Prisons," and an- nuities be engrafted thereupon. for the above mentioned pur- pose, I would most readily stand at the bottom of a page for five hundred pounds; or if such society shall be instituted within three years after my death, this sum shall be paid out of my estate." D

PA17O 26 the same occasion a resolution of the Supreme Executive Council was submitted, asking the so- ciety to confer with a deputation, which had been chosen by the former body, on the subject of the condition of the jail of the city and coun- ty of Philadelphia; which request was promptly met, and a large committee accordingly appoint- ed. ,At the joint meetings of the delegates, se- veral interesting and important discussions took place, and a general view of the subjects under notice being prepared, the succeeding paper was furnished to the council.

"In consequence of a minute of the Supreme Executive Council, 20th November, 1788, laid before a special meeting of the Society for alleviating the miseries of Public Prisons, a committee was appointed to take the said minute into conside- ration, and to give such information to Council as the nature of the minute requires, which committee, having several times met, agree to make the following representation: "That in the article of clothing few complaints arise respect- ing the condemned criminals, but amongst the greater number confined in prison previous to trial, there frequently happen cases of great want, many of the prisoners being destitute of shirts and stockings and warm covering, partly owing to the length of time before trial, and partly to the easy access, by va- rious means, to spirituous liquors, for which their clothes are. disposed of. Clothing distributed by the society to the appa- rently most destitute, has, in many instances, been quickly ex- changed for rum. No provision being made by law for relieving these distressed objects, or for preventing the abuses of chari- table donations, it is at present an evil without a remedy, though it is conceived that a kind of prison dress might be adopted by law, and as easily preserved from sale as those of the convicts. "In the article of diet an allowance is made by law to the

PA171 The Crisis of Imprisonment

PROTEST, POLITICS, AND TILE MAKING OF THE

AMERICAN PENAL STATE, I 76 1

Rebecca VI, McLennan The University of Califirrnia, Berkeley

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Rebccea M. McLennan 2008

This publication is in copyright. Subject to statutory ev.ception and the provisiOns of relevant collective licen'Ning ..,tgret rri no I eproduction of any pat t may- takc place without the written pci In of Ca itilmidg,t Linke' id11) Vs 41,.

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A catalog record for this imblication avai-labk from .Brib",$b

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Ri...beeca M.. 1967 - The crisis of imprisonment : protest, ptolitics, and thr inaki ng of ilic American penal stint. .771;- loi Rc-hecca M. liticl_cnnan. p. ctn. (Cambridge historical studies itr Ainclican lap, arid socit-h) Includes bibliographical tern ClIICCS and itICIVX, ISBN Li 78O-52i.1i3o9fi-6 (hardback) - ISBN 978-0 512 78.43 4 (phk.)

1. Protest movements - United States - C0111001 labor -- United States Slaws I listory. 1. l'unislinten1 I I '. Imprisonmcni -1...nitcd - - Stah-;

L 6. I alum rn9vt- cii H i siorv. 5_ Criminal law - nitod Siat4.s - Status - History. 7. Lnitcd States - Politics and giotourront I. fitit u"..7,91422,2 2008 365'.9;30g034 -d4:22 200701851p

ISBN 78-0-52 1-83006-6 hardback rclIN 978-0-521-53783-1 !MIKA liat'k

Cambridge University Press has no responiability for the persistence or accuracy LALS for external cr third -party I n tcr-nt-t Web sites nrit-1rt.(110 hi ibis plibliratioui and flocs not guaTanace Elm! any roinivii t .n snril Web sites is, not remain, acclimate or ,Ispproprilitc. PA173 Strains of Servitude: Legal Punishment in the Early Republic 19 criticism on both sides of the North Atlantic since at least 1764 (when Cesare Beccaria published his celebrated critique of capital punishment)," the experience of war itself proved an important catalyst in the articulation, first, of a coherent American critique of what the revolutionaries argued were "monarchical" penal laws and practices, and, eventually, of a positive republican theory of crime, penal law, and penal practice. Drawing vari- ously on the works of Beccaria and Montesquieu, Quaker theology, classi- cal republicanism, English country ideology, and the former colonies' own penal practices, the revolutionaries launched a wave of impas.sioned cri- tiques of the death penalty and other sanguinary punishments in which the British government had commonly engaged, both in times of peace and in times of war. A diverse group of American patriots frequently and passion- ately condemned the British power's liberal use of the gallows, and what they decried as the monarchy's "cruel," "savage," and lawless treatment of American civilians and soldiers. Connections were drawn between British "savagery" on the battlefield and the frequency with which the courts in England reputedly condemned Englishmen, found guilty of crimes grand and petty, to swing from the "hanging tree."' Q there was some variation of emphasis among these early rev- olutionary critiques, as early as 1777, two basic and closely related themes united them: Critics argued that capital and related sanguinary punishments were inherently despotic and immoral in nature, and that such punish- ments were also irrational and even detrimental to the society they were allegedly intended to protect. Bloody and "excessive" spectacles of pun- ishment, reasoned Thomas Jefferson, Benjamin Rush, John Adams, and Benjamin Franklin, among others, were the native weapons of kings and despots. Capital punishment, in particular, was emblematic of the monar- chical mode of government; while some revolutionary critics countenanced the punishment of death by hanging for the most serious of crimes, others sought the outright abolition of all forms of the death penalty. One such absolute opponent of capital punishment, Benjamin Rush, argued that the punishment of death for murder not only "propagated" murder itself but,

University Press, 1986), 451-5,530-8; and Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993), 41-2. " Cesare Beccaria (trans. Henry Paolucci), On Grimes and Punishments (Indianapolis: Bobhs Merrill, 1963). Masur, Rites of Execution, 54-60. In 1782, for example, Thomas Paine wrote an outraged, open letter to Sir Guy Carleton in which he protested the summary hanging, from a tree, of a patriot taken captive by the British at New York: The patriot (a Captain Huddy) "was taken out of the provost down to the water -side, put into a boat, and brought again upon the Jersey shore, and there, contrary to the practice of all nations but savages, was hung up on a tree, and left hanging till found by our people who took him down and buried him." "What sort of men must Englishmen be ... ?" Paine implored: "The history of the most savage Indians does not produce instances exactly of this kind. They, at least, have a formality in their punishments. With them it is the horridness of revenge, but with your army it is a still greater crime, the horridness of diversion." "A Supernumerary Crisis, To Sir Guy Carleton," Crisis Papers, Philadelphia, May 31, 1782.

PA174 1780] The Statutes at Large of Pennsylvania. 67

CHAPPED DCCCLXXXI.

AN ACT FOR THE GRADUAL ABOLITION OF SLAVERY. (Section I, P. L.) When we contemplate our abhorrence of that condition to which the arms and tyranny of Great Britain were exerted to reduce us, when we look back on the variety of dangers to which we have been exposed, and how miraculously our wants in many instances have been supplied and our deliv- erances wrought, when even hope and human fortitude have become unequal to the conflict, we are unavoidably led to a serious and grateful sense of the manifold blessings which we have undeservedly received from the hand of that Being from whom every good and perfect gift cometh. Impressed with these ideas, we conceive that it is our duty, and we rejoice that it is in our power, to extend a portion of that freedom N to others, which hath been extended to us, and a release from eNi that state of thraldom, to which we ourselves were tyrannically r*4 (13 doomed, and from which we have now every prospect of being delivered. It is not for us to enquire why, in the creation of mankind, the inhabitants of the several parts of the earth were distinguished by a difference in feature or complexion. It is sufficient to know that all are the work of an Almighty Hand. We find in the distribution of the human species that the most fertile as well as the most barren parts of the earth are inhabited by men of complexions different from ours and from each other, from whence we may reasonably, as well as religiously infer, that He, who placed them in their various situations, hath extended equally His care and protection to all, and that it becometh not us to counteract His mercies: We esteem it a peculiar blessing granted to us, that we are enabled this day to add one more step to universal civilization rN q., by removing as much as possible the sorrows of those who c. cri di ,0 have lived in undeserved bondage, and from which by the as- 0 0 (-,,

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA175 68 Me Statutes at Large of Pennsylvania. [1780 sumed authority of the Kings of Britain, no effectual legal relief could be obtained. Weaned by a long course of experi- ence from those narrow prejudices and partialities we had imbibed, we find our hearts enlarged with kindness and benevo- lence towards men of all conditions and nations, and we con- ceive ourselves at this particular period extraordinarily called upon, by the blessings which we have received, to manifest the sincerity of our profession and to give substantial proof of our gratitude: (Section II, P. L.) And whereas the condition of those per- sons who have heretofore been denominated negro and mulatto slaves, has been attended with circumstances which not only deprived them of the common blessings that they were by nature entitled to, but has cast them into the deepest afflic- tions by an unnatural separation and sale of husband and wife , from each other, and from their children, an injury the great- ness of which can only be conceived by supposing that we were in the same unhappy case. In justice, therefore, to persons so unhappily circumstanced, and who, having no prospect be- fore them whereon they may rest their sorrows and their hopes, have no reasonable inducement to render that service eNi to society which they otherwise might, and also in grateful r*4 (13 commemoration of our own happy deliverance from that state of unconditional submission to which we were doomed by the .1, tyranny of Britain: [Section I.] (Section III, P. L.) Be it enacted and it is hereby enacted by the Representatives of the Freemen of the Common- wealth of Pennsylvania in General Assembly met, and by the authority of the same, That all persons, as well negroes and mulattoes as others who shall be born within this state, from and after the passing of this act, shall not be deemed and considered as servants for life or slaves; and that all servitude -- for life or slavery of children in consequence of the slavery of their mothers, in the case of all children born within this state from and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, extinguished and forever c,4 r.4 abolished. [Section II.] (Section IV, P. L.) Provided always, and be it di

OriginaI from Digitized by Googk UNIVERSITY OF MICHF-AN PA176 70 The Statutes at Large of Pennsylvania. [1780 age of thirty-one years, within this state who shall be such on the said first day of November next, from all other persons, which particulars shall by said clerk of the sessions and clerk of said city court be entered in books to be provided for that purpose by the said clerks; and that no negro or mulatto now within this state shall, from and after the said first day of November, be deemed a slave or servant for life or till the age of thirty-one years unless his or her name shall be entered as aforesaid on such record except such negro and mulatto slaves and servants as are hereinafter excepted; the said clerk to be entitled to a fee of two dollars for each slave or servant so entered as aforesaid from the treasurer of the county, to be allowed to him in his accounts. (Section VI, P. L.) Provided always, That any person in whom the ownership or right to the service of any negro or mulatto shall be vested at the passing of this act, other than such as are hereinbefore excepted, his or her heirs, executors, administrators and assigns, and all and every of them severally shall be liable to the overseers of the poor of the city, township or district to which any such negro or mulatto shall become chargeable, for such necessary expense, with costs of suit thereon, as such overseers may be put to through the neglect of the owner, master or mistress of such negro or mulatto, not - (13 withstanding the name and other descriptions of such negro or mulatto shall not be entered and recorded as aforesaid; unless his or her master or owner shall, before such slave or servant attain his or her twenty-eighth year, execute and record in the proper county, a deed or instrument securing to such slave or servant his or her freedom. [Section IV.] (Section VII, P. L.) And be it further enacted by the authority aforesaid, That the offenses and crimes of negroes and mulattoes as well slaves and servants and [sic] [as] freemen, shall be inquired of, adjudged, corrected and pun- ished in like manner as the offenses and crimes of the other in- n-) habitants of this state are and shall be enquired of, adjudged, corrected and punished, and not otherwise, except that a slave c%.1 shall not be admitted to bear witness against a freeman. rN [Section V.] (Section VIII, P. L.) And be it further enacted di

CV

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA177 1780] The Statutes at Large of Pennsylvania. 69 further enacted by the authority aforesaid, That every negro and mulatto child born within this state after the passing of this act as aforesaid who would in case this act had not been made, have been born a servant for years or life or a slave, shall be deemed to be and shall be, by virtue of this act the servant of such person or his or her assigns who would in such case have been entitled to the service of such child until such child shall attain unto the age of twenty-eight years, in the manner and on the conditions whereon servants bound by indenture for four years are or may be retained and holden, and shall be liable to like correction and punishment, and entitled to like relief in case he or she be evilly treated by his or her master or mistress, and to like freedom dues and other privi- leges as servants bound by indenture for four years are or may be entitled unless the person to whom the service of any such child shall belong shall abandon his or her claim to the same, in which case the overseers of the poor of the city, town- ship or district, respectively where such child shall be so abandoned, shall [by indenture] bind out every child so aband- oned as an apprentice for a time not exceeding the age herein - before limited for the service of such children. [Section III.] (Section V, P. L.) And be it further enacted by the authority aforesaid, That every person who is or shall (13 be the owner of any negro or mulatto slave or servant for life or till the age of thirty-one years, now within this state, or his lawful attorney shall, on or before the said first day of November next, deliver, or cause to be delivered, in writing to the clerk of the peace of the county or to the clerk of the court of record of the city of Philadelphia, in which he or she shall respectively inhabit, the name and surname and occupa- tion or profession of such owner and the name of the county and township, district or ward wherein he or she resideth, and also the name and names of any such slave and slaves and servant and servants for life or till the age of thirty-one years, together with their ages and sexes severally and respectively (NJ set forth and annexed, by such person owned or statedly em- c,4 ployed and then being within this state, in order to ascertain (NJ and distinguish the slaves and servants for life and years till the ck 0

CV

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA178 17801 The Statutes at Large of Pennsylvania. 71 by the authority aforesaid, That in all cases wherein sentence of death shall be pronounced against a slave, the jury before whom he or she shall be tried shall appraise and declare the value of such slave, and in case such sentence be executed, the court shall make an order on the state treasurer, payable to the owner for the same and for the costs of prosecution, but in case of a remission or Mitigation for the costs only. [Section VI.] (Section IX, P. L.) And be it further enacted by the authority aforesaid, That the reward for taking up run- away and absconding negro and mulatto slaves and servants and the penalties for enticing away, dealing with or harboring, concealing or employing negro and mulatto slaves and servants shall be the same, and shall be recovered in like manner as in case of servants bound for four years. [Section VII.] (Section X, P. L.) And be it further enacted by the authority aforesaid, That no man or woman of any nation or color, except the negroes or mulattoes who shall be registered as aforesaid shall at any time hereafter be deemed, * adjudged or holden, within the territories of this common- wealth, as slaves or servants for life, but as free men and free women, and except the domestic slaves attending upon dele- gates in Congress from the other American states, foreign min- rN inters and consuls, and persons passing through or sojourning in this state, and not becoming resident therein; and seamen

.1, o employed in ships, not belonging to any inhabitant of this state nor employed in any ship owned by any such inhabitant: [Pro- vided such domestic slaves be not aliened or sold to any inhabit- ant] nor (except in the case of members of Congress, foreign ministers and consuls) retained in this state longer than six months. [Section VIII.] (Section XI, P. L.) Provided always, and be it further enacted by the authority aforesaid, That this act, nor anything in it contained, shall not give any relief or shelter , to any absconding or runaway negro or mulatto slave or ser- rn vant, who has absented himself or shall absent himself from his or her owner, master or mistress, residing in any other c%.1 state or country, but such owner, master or mistress, shall have like right and aid to demand, claim and take away his slave di

CV

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA179 1780] The Statutes at Large of Pennsylvania. 73 one, entitled "An act for laying a duty on negro and mulatto slaves imported into this province,"1 and also another act of assembly of the said province, passed in the year one thousand seven hundred and seventy-three, entitled "An act for making perpetual an act for laying a duty on negro and mulatto slaves imported into this province and for laying an additional duty on said slaves,'" shall be and are hereby repealed, annulled and made void.

Passed March 1, 1780. See the Acts of Assembly passed October 1, 1781, Chapter 953; March 29, 1788, Chapter 1345; December 8, 1789, Chapter 1476. Recorded L. B. No. 1, p. 339, &c.

CHAPTER DCCCLXXXII.

AN ACT TO COMPEL THE SETTLEMENT OF THE PUBLIC ACCOUNTS. (Section I, P. L.) Whereas in the course of the present contest between the inhabitants of the United States of America and ri Great Britain very large and great expenditures and advances of (NJ public money have been made by the good people of Pennsyl- (13 vania in the common cause: (Section II, P. L.) And whereas many of persons to whom .1, the such advances of money have been made, regardless of the public welfare, as well as of their own credit and character, have refused or neglected and do still refuse or neglect to exhibit their accounts and vouchers and to settle their accounts not- - withstanding the opportunity which has been given and the re- peated calls which have been made upon such defaulters by the auditors appointed and authorized in [and] by an act of as- sembly of this commonwealth, entitled "An act for settling the accounts of the late committee and council of safety,"a passed on the second day of September, which was in the year (NJ of our Lord one thousand seven hundred and seventy-eight;

1 passed March 14, 1761, Chapter 467. 2 Passed February 26, 1773, Chapter 681. ck 0 s Passed September 2, 1778, Chapter 806. c. fV

rQ a) ro OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN aL PA180 72 The Statutes at Large of Pennsylvania. L1780 or servant as he might have had in case this act had not been made. And that all negro and mulatto slaves now owned, and heretofore resident in this state, who have absented themselves or been clandestinely carried away, or who may be employed abroad as seamen, and have not returned or been brought back to their owners, masters or mistresses, before the passing of this act may, within five years be registered as effectually as is ordered by this act concerning those who are now within this state, on producing such slave before any two justices of the peace, and satisfying the said justices by due proof of the former residence, absconding, taking away or absence of such slave as aforesaid; who, thereupon, shall direct and order the said slave to be entered on the record as aforesaid. (Section XII, P. L.) And whereas attempts may be made to evade this act by introducing into this state negroes and mu- lattoes bound by covenant to serve for long and unreasonable term of years, if the same be not prevented: [Section IX.] (Section XIII, P. L.) Be it therefore enacted by the authority aforesaid, That no covenant of personal servi- tude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer term than seven years, unless such servant or apprentice were at the commencement of such servitude or apprenticeship under the age of twenty-one years; in which case such negro or mulatto may be holden as a servant O or apprentice respectively according to the covenant, as the case shall be until he or she shall attain the age of twenty-eight years, but no longer. [Section X.] (Section XIV, P. L.) And be it further enacted by the authority aforesaid, That an act of assembly of the province of Pennsylvania, passed in the year one thousand seven hundred and five, entitled "An act for the trial of ne- groes," and another act of assembly of the said province, passed in the year one thousand seven hundred and twenty- five, entitled "An act for the better regulating of negroes in this province," 2and another act of assembly of the said pro- vince passed in the year one thousand seven hundred and sixty -

1 Passed January 12, 1705-06, Chapter 143. 2 Passed March 5, 1725-26, Chapter 292.

rQ

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA181 280 The Statutes at Large of Pennsylvania. [1786 of Pennsylvania exclusive of pew rents and other free contri- butions belonging to the aforesaid congregation, which said money shall be received by the said trustees and disposed of by them for the purposes and in the manner hereinbefore described and directed. Passed September 11, 1786. Recorded L. B. No. 3, p. 140, etc.

CHAPTER MCCXLI.

AN ACT AMENDING THE PENAL LAWS OF THIS STATE. (Section I. P. L.) Whereas by the thirty-eighth section of the second chapter of the constitution of this commonwealth it is declared, "That the penal laws as heretofore used should be reformed by the legislature of this state as soon as may be and punishments made in some cases less sanguinary and in general more proportionate to the crimes." And by the thirty- ninth section that, "To deter more effectually from the commis- sion of crimes by continued visible punishment of long dura- tion, and to make sanguinary punishment less necessary, houses ought to be provided for punishing by hard labor those who shall be convicted of crimes not capital, wherein the criminal shall be employed for the benefit of the public or for reparation of injuries done to private persons." And whereas it is the wish of every good government to re- claim rather than to destroy, and it being apprehended that the cause of human corruptions proceed more from the impunity of crimes than from the moderation of punishments, and it hav- ing been found by experience that the punishments directed by the laws now in force as well for capital as other inferior of- fences do not answer the principal ends of society in inflicting them, to wit, to correct and reform the offenders, and to pro- duce such strong impression upon the minds of others as to deter them from committing the like 'Offences, which is con- ceived may be better effected by continued hard labo"r, publicly and disgracefully imposed on persons convicted of them, not

PA182 1786] The Statutes at Large of Pennsylvania. 281 only the manner pointed out by the convention, but in streets of cities and towns, and upon the highways of the open country and other public works. [Section I.] (Section II. P. L.) Be it therefore enacted and it is hereby enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania in General Assembly met and by the authority of the same, That the pains and penalties hereinafter mentioned shall be inflicted upoli the several of- fenders who shall from and after the first day of November next. commit and be legally convicted of any of the offences herein- after enumerated and specified in lieu of the pains and penal- ties which by law have been heretofore inflicted, that is to say, every person convicted of robbery, burglary, sodomy or bug- gary, or as accessory thereof before the fact, shall forfeit to, the commonwealth all and singular the lands and tenements, goods and chattels whereof he or she was seized or possessed at the time the crime was committed, and at any time after- wards until convicted and be sentenced to undergo a servitude for any term or time at the discretion of the court who passes the sentence not exceeding ten years in the public gaol or house of correction of the county or city in which the offence shall have been committed and kept at such labor and fed and clothed in such manner as is hereinafter directed. [Section II.] (Section III. P. L.) Provided always and be it further enacted by the authority aforesaid, That no person ac- cused of any of the aforesaid crimes shall be admitted to bail but by the judges of the supreme court or some or one of them, nor shall he or she be tried but in the supreme court or in a court of over and terminer and general goal delivery held in and for the county wherein the offence shall have been com- mitted, and that peremptory challenges shall be allowed in all such cases, wherein they have been heretofore allowed by law: But no attainder hereafter shall work corruption of blood in any case, nor extend to the disinherison or prejudice of any per- son or persons other than the offender. [Section III.] (Section IV. P. L.) And be it further enacted by the authority aforesaid, That every person convicted of horse stealing or as accessory thereof before the fact, shall restore

PA183 282 The Statutes at Large of Pennsylvania. [1786 the horse, mare or gelding stolen to the owner or owners thereof, or shall pay to him, her or them, the full value thereof, and also pay the like value to the commonwealth, and more- over undergo a servitude for any term not exceeding seven years in the discretion of the court before which the conviction shall be and shall be confined, kept to hard labor, fed and clothed in the manner as is hereinafter directed; every person convicted of simple larceny to the value of twenty shillings and upwards or as accessory thereof before the fact, shall re- store the goods or chattels so stolen to the right owner or owners thereof or shall pay to him, her or them the full value thereof or so much thereof as shall not be restored, and more- over shall forfeit and pay to the commonwealth the like value of the goods and chattels stolen, and also undergo a servitude for any term. of years not exceeding three, at the discretion of the court before which the conviction shall be, and shall be con- fined, kept to hard labor, fed and clothed in manner herein- after directed. (Section V. P. L.) And whereas by the ninth section of the first chapter of the constitution it is declared, "That in all pro- secutions for criminal offences a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial by an impar- tial jury of the country without the unanimous consent of which jury he cannot be found guilty." Since which declaration it is not proper that persons accused of small or petty larcencies should be tried and convicted before two magistrates or jus- tices of the peace without the intervention of a jury. [Section IV.] (Section VI. P. L.) Be it therefore enacted by the authority aforesaid, That the act of assembly, entitled "An act for the trial and punishment of larceny under five shillings' be -and the same is hereby repealed, and that if any person or persons shall hereafter feloniously steal, take and carry away any goods, or chattels under the value of twenty shillings, the same order and course of trial,shall be had: and observed as for other simple larcenies, and he, she or they, being thereof le-

1 Passed Feb. 24, 1720-21. Chapter 243.

PA184 178G] The Statutes at Large of Pennsylvania. 283 gaily convicted, shall be deemed guilty of petty larceny, and shall restore the goods and chattels so stolen or pay the full value thereof to the owner or owners thereof, and also forfeit and pay 'the like value to the commonwealth and be further sentenced to undergo a servitude for a term not exceeding one year in the discretion of the court before which such convic- tion shall be, and be confined, kept to hard labor, clothed and fed in manner hereinafter directed. And every person con- victed of bigamy or of being an accessory after the. fact in any felony, or of receiving stolen goods knowing them to have been stolen, or of any other offense not capital for which by the laws now in force burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for life, is or may be inflicted, shall instead of such parts of the punishment, be fined, and sentenced to undergo in like manner, and be confined, kept to hard labor, fed and clothed, as is hereinafter directed for any term not ex- ceeding two years, which the court before whom such convic- tion shall be, may and shall in their discretion think adapted to the nature and heinousness of the offense. [Section V.] (Section VII. P. L.) And be it further enacted by the authority aforesaid, That robbery or larceny of obliga- tions or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates on loan on the credit of this commonwealth or of all or any of the United States of America shall be punish- ed in the same manner as robbery or larceny of any goods or chattels. (Section VIII. P. L.) And whereas by the eight section of the act of assembly, entitled "An act for the advancement of justice and more certain administration thereof,"2 it is enacted, that if any woman shall endeavor privately to conceal the death of her child, which by being born alive, should by the law be deemed a bastard, so that it may not come to light, whether it were born alive or not, and be convicted thereof, she shall suffer death as in case of murder, "except such mother can make proof by one witness at the least, that the child, whose death was by

a passed May 31, 1718. Chap. 236:

PA185 284 The Statutes at Large of Pennsylvania. [1786

her so intended to be so concealed, was born dead;" whereby the bare concealment of the death is made almost conclusive evi- dence of the child's being murdered by the mother or by her procurement. [Section VI.] (Section IX. P. L.) Be it therefore declared and enacted by the authority aforesaid, That from and after the publication of this act the constrained presumption that the child whose death is so concealed was therefore murdered by the mother, shall not be sufficient evidence to convict the party indicted without probable presumptive proof is given that the child was born alive. [Section VII.] (Section X. P. L.) And be it further enacted by the authority aforesaid, That every other felony or misde- meanor or offence whatsoever not specially provided for by this act may and shall be punished as heretofore. [ Section VIII.] (Section XI. P. L.) And be it further enacted by the authority aforesaid, That the malefactors sentenced to hard labor as aforesaid in punishment of their crimes may and shall be employed not only in the gaols and houses of correc- tion of the respective counties wherein they shall be confined, but also in repahing and cleaning the streets of the cities or towns, in making, repairing and amending the public roads or highways, in fortifications, mines, and such other hard and laborious works within the county where they shall have been convicted, and for the benefit of such county as by the courts before whom they were convicted in their discretion shall be directed: And during the term of their condemnation shall at the public expense of such county be fed on such course whole- some food as may be sufficient for them and shall have such lodgings as defend them from the inclemencies of the weather (and the males have their heads and beards close shaven at least once in every week) and be clothed in habits of course materials, uniform in color and make and distinguished from all others used by the good citizens of this commonwealth and also have some visible mark on the outer garment designating the nature of the crline for which sentenced, that so they may be marked out to public note as well while at their ordinary oc- cupations as when attempting to make their escapes.

PA186 1786] The Statutes at Large of Pennsylvania. 285

(Section XII. P. L.) And to the end that the opulence of the offender or of his friends or the indiscreet bounties of indi- viduals may not disarm the public justice or alleviate those suf- ferings which making part of the punishments intended by the law should be incurred equally by all, and also to render es- capes more difficult, their keeper shall take particular care that no such malefactor use or receive any clothing other than what shall be provided by the public as is before directed, nor re- ceive, nor have in their own keeping any weapon, [arms], money or other property, nor have attendants of their own, and all artitcles so prohibited to them and found in their cus- tody or use shall belong to him or her who shall give informa- tion thereof to the said keeper and demand delivery to be made by him, which the said keeper is hereby directed to deliver ac- cordingly under the penalty of ten pounds. And the sheriff of the proper county to whom the said malefactors shall be committed in execution of their sentence shall from time to time with the approbation of the justices of the court of quar- ter sessions of the proper county in open court appoint so many keepers of the said malefactors as shall be necessary whose wages shall be ascertained and allowed by the said court and paid by the treasurer of the county out of the moneys in his hands raised for the use of the said county, by a warrant drawn by the said sheriff and at least one of the commissioners of the proper county, and that the duty of the said keepers shall be to superintend and direct their labors, manage and attend to their clothing, diet and lodging, and take care that they be safely kept, and the better to effect this purpose they shall have au- thority to confine in close durance apart from all society all those who shall refuse to labor, be idle or guilty of any tres- pass, and during such confinement to withhold from them all sustenance except bread and water, and also to put iron yokes around their necks, chains upon their leg or legs or otherwise restrain in irons such as shall be incorrigible or irreclaimable without such severity. [Section IX.] (Section XIII. P. L.)' Aid be it further en- acted by ttt authority aforesaid, That the court of quarter ses- sions of the county wherein the malefactors labor shall have

PAl 87 286 The Statutes at Large of Pennsylvania. [1786

power either ex -officio or upon information against any such keeper for partiality or cruelty to call before them such keeper, together with the material witnesses and inquire into his con- duct, and if it shall appear that he has been guilty of gross partiality or cruelty, it shall and may be lawful for the said court to suspend or remove him, and the judges of the supreme court when sitting in bane or any of the judges when upon the circuit either on their own motion or on complaint made by any other may take original cognizance of the misbehaviours of any keeper and remove him from office if they see cause and in case of suspension or removal of all or any of the said keepers either by the justices of the quarter sessions or the judges of the su- preme court, the sheriff of the proper county with the approba- tion of the justices of the quarter sessions of the same county shall and he is hereby authorized and directed to appoint other keeper or keepers in the room of such as shall have been so sus- pended or removed. [Section X.] (Section XIV. P. L.) And be it further enacted by the authority aforesaid, That every of the said keepers shall be exempted from being in the militia and from all fines and duties on that account. And if any malefactor shall escape from his or her keeper or absent himself or herself from his or her labor without good cause, to be judged of by the court whereby he or she was condemned, the term of his or her servi- tude shall by the order of such court made on record be length- ened two days for every one he or she shall be absent. (Section XV. P. L.) And whereas many young persons from habits of idleness and intemperance and from want of a pious education are drawn unwarily into the commission of crimes and are apprehended and brought to punishment before they be- come so hardened as to be void of shame or beyond the hope of being reclaimed. [Section XI.] Be it further enacted by the authority afore- said, That the keepers aforesaid shall endeavor as much as in them lies to separate as well those who are confined to labor within doors, as those that shall be employed without in such manner as that the old and hardened offenders be,prevented from mixing with and thereby contaminating and eradicating

PA188 1786] The Statutes at Large of Pennsylvania. 287 the remaining seeds of virtue and goodness in the young and unwary, and the men from an improper intercourse with the women. [Section XII.] (Section XVI. P. L.) And be it further en- acted by the authority .aforesaid, That the sheriffs or keepers of the gaols and the keepers of the work -houses or houses of correction in the several counties of this state shall once in every three months or oftener if required, furnish the commis- sioners of their respective counties with a complete calender or list of all persons committed to their respective custody under sentence of such servitude, together with the names of their crimes, the term of their servitude, in what court condemned, the ages and description of the persons of such as shall appear to be too old and infirm or otherwise incapable to undergo hard labor out of the gaols or work -houses, and the said commission- , ers shall at the charge of the proper county provide for the clothing and the food hereinbef ore directed for them, and also such articles and materials of labor and manufacture as shall be most suitable for the employment of all those who are capa- ble of labor or manufacture, and deliver the same to the said gaoler, sheriff or other work-house keeper, taking a receipt therefor and that the sheriff, gaoler and work -house keeper shall render an account quarterly or oftener if required to the commissioners of the work done by the said malefactors and dispose of the same in such manner as the commissioners shall direct. And the said commissioners are hereby authorized from time to time to draw orders or give their warrants on the treasurer of the proper county for the advance of such sums as they shall thing reasonable and necessary for carrying this act into execution, and all expenses and charges incurred or to be incurred by virtue of this act shall be levied and raised as other county charges are, and be accounted for in like manner. (Section XVII. P. L.) And in order to encourage those of- fenders in whom the love of virtue and the shame of vice is not wholly extinguished to set about a sincere and actual repen- tance and reformation, of life and' conduct s° as at the expira- tion of their terms of servitude they may become useful mem- bers of society.

PA189 288 The Statutes at Large of Pennsylvania. [1786 [Section XIII.] Be it further enacted by the authority afore- said, That upon the application of any of the said malefactors or any other in their behalf it shall and may be lawful for the court in which they were convicted at and before the expiration of their servitude to make inquiry as well of the sheriff, gaoler or keeper of the work -house or house of correction as of the keeper and keepers and others concerning the conduct and be- haviour of such applicant during his or her servitude, and, if it shall appear thereupon to them that such person hath labored faithfully without attempting an escape and evidenced by a patient submission to the justice of their punishment a sincere reformation, then and in such case the said court shall grant to every such person a certificate thereof which shall also be recorded without fee in the proceedings of such court, and shall . thereupon operate as a discharge from all claims and demands of the party injured and also as a pardon of the guilt and infamy of the offence, and give him or her a new capacity and credit. [Section XIV.] (Section XVIII.) And be it further enacted by the authority aforesaid, That the profits arising from the work, labor and services of malefactors in pursuance of this act shall be applied towards the payment of the fees of their prosecutions and the expenses which shall accrue in making the necessary provision for clothing, maintaining and keeping them, and if there should be any surplus, the same shall be paid into the treasury for the use of the proper county. [Section XV.] (Section XIX. P. L.) And be it further en- acted by the authority aforesaid, That this act shall be in force and take effect within this commonwealth from and after the first of November next. [Section XVI.] (Section XX. P. L.) Provided nevertheless and be it further provided by the authority aforesaid, That if any person shall be convicted in any county within this state of any offence which had been committed before the publication of this act and for which he or she by the laws now in force would be liable to suffer the pains of death that if such convict openly pray the court before which su,eh conviction shall be had, that sentence be passed upon him or her aocooding to the provisions of this act for like offence, that then and in such

PA190 1786] The Statutes at Large of Pennsylvania. 289 case the court shall pass like sentence against such convict and to similar effect and not otherwise as if the offence of which such person shall be so convicted had been committed after the first of November next. [Section XVII.] (Section XXI. P. L.) Be it further enacted by the authority aforesaid, That this act shall be in force and have effect as to the therein offences mentioned and provided for, which shall have been committed within three years from and after. the first day of November next, and to the end of the next succeeding session of the general assembly andno longer. (Section XXII. P. L.) Provided nevertheless, That the force and operation thereof as to the person or persons who shall so offend within the same terms shall not be vacated nor affected thereby, but the same sentences and every of them shall be pro- nounced, remain' valid and be executed in their full extent on all and every such person and persons notwithstanding the ex- piration of the term last aforesaid. (Section XXIII. P. L.) And whereas it may so happen that there may be but one or few offenders convicted and sentenced to hard labor and other punishment in pursuance of this act within any county, whereby the burden upon the same county may be needlessly great and it would further the good designs of the legislature in making the foregoing alterations in the penal laws of this commonwealth, and lessen the charges of carrying the provisions of this act into execution, if in proper cases the said offender or offenders may be removed to some other county or counties there to be imprisoned and treated according to their several sentences: Therefore: [Section XVIII.] Be it enacted by the authority aforesaid, That the president or vice president in council upon application for that purpose made by the commissioners of any county within this commonwealth at their discretion may if they think proper authorize and direct by warrant under the less seal the removal of any convict or convicts by virtue of this act from any one or more of the counties of this commonwealth to any other of the counties of the same, there to be held, imprisoned, kept at labor, fed and treated in the same manner as if they had 19-XII

PA191 290 The Statutes at Large of Pennsylvania. [1786 severally remained in the county where they or either of them was or were convicted; and the commissioners of the county to which any such convict or convicts shall be so removed as aforesaid shall have authority to draw an order or orders from time to time or as often as it shall be necessary upon the treas- urer of the county from whence any convict or convicts shall have been so removed for all expenses which shall or may ac- crue in removing, feeding and clothing such convict or convicts, which order or orders the treasurer of the proper county from which such convict or convicts was removed shall accept and pay. Passed September 15, 1786. Recorded L. B. Na. 3, p. 112, etc. See the Acts of Assembly passed March 27, 1789, Chapter 1409; April 5, 1790, Chapter 1516.

CHAPTER MOOXLII.

AN ACT FOR ALTERING AND AMENDING AN ACT ENTITLED "AN ACT TO REGULATE THE GENERAL ELECTIONS OF THIS COMMON- WEALTH AND TO PREVENT FRAUDS THEREIN." 1 (Section I. P. L.) Whereas it was enacted and provided in and by an act of general assembly of this commonwealth pub- lished on the thirteenth day of September last, entitled "An act to regulate the general elections of this commonwealth and to prevent frauds therein," with design to prevent the committing of irregularities and abuses during the night time, that the gen- eral elections of this commonwealth shall begin on the second Tuesday in the month of October annually between the hours of ten o'clock in the forenoon and one o'clock in the afternoon of the same day and the poll whereof shall be tarred on without interruption or adjournment until the hour of seven o'clock in the afternoon of the same day, other than the elections to be holden for the city and county of Philadelphia, the poll whereof shall be carried on without interruption or adjourn- 1Passed Sept. 13, 1785. Chap. 1175.

PA192 A History of the Pennsylvania Prison Society 1787-1937 FORMERLY The Philadelphia Society for Alleviating the Miseries of Public Prisons

by NEGLEY K. TEETERS Temple University

Introduction by HARRY ELMER BARNES

and a concluding chapter by ALBERT G. FRASER Executive Secretary, Pennsylvania Prison Society

SEVENTY-FIVE ILLUSTRATIONS Photographic work by Ellis 0. Hinsey

THE JOHN C. WINSTON COMPANY CHICAGO PHILADELPHIA TORONTO Copyright 1937 by George W. Wilkins

PA194 CHAPTER I

INTRODUCTORY BACKGROUND OF THE PHILADELPHIA SOCIETY

The City of Philadelphia in 1787 gentle- "On Tuesday the 8th day of May, 1787, a number of a society men assembled and agreed to associate themselves in to be entituled (sic) 'The Philadelphia society for alleviating the miseries of public prisons'."1

Thus was founded this humane organization in the midst of one of the most exciting periods this country has ever expe- rienced, that between the termination of the Revolution and the year 1800, when the infant nation was attempting to justify its existence. During this remarkable interval the civic leaders of William Penn's Quaker city were faced not only with the problem of resuming the customary pursuits which the recent conflict had disrupted for almost a decade, but also with those developments which were the natural consequence of assum- ing independence. Philadelphia seethed with activities. Being the seat of the existing government as well as the capital of the Commonwealth of Pennsylvania, it was clothed with a certain metropolitan authority. By virtue of its political status, it was natural that delegates should be sent here to draw up rules and regulations to govern the new nation. So it was in the same month and year that saw the founding of the "Phila- delphia Society," 2 delegates convened, and in the course of the next four months, produced the Federal Constitution. Made famous by these events so important to the city of Philadelphia, the year 1787 has other bids to fame. Many civic organizations were either founded or revived. Aside from the organization which is the subject of this study, there

1 From the Minutes of the Society, first meeting. The first public notice of this meeting may be found in the Pennsylvania Mercury and Universal Advertiser, Friday, May 25, 1787, p. 3. 2 Throughout the early part of this work, the Society will be desig- nated by this name; subsequently it will be referred to by its later title The Pennsylvania Prison Society. The name was changed in 1887. 2 (1) PA195 2 INTRODUCTORY BACKGROUND

were "The Pennsylvania Society for Encouragement of Manu- factures and the Useful Arts" and "The Society for Political Inquiries, for Mutual Improvement in Knowledge, of Govern- ment, and for the advancement of Political Science." This latter organization was composed of fifty resident members, meeting every two weeks for the discussion of governmental and economic questions. At one of these meetings, perhaps the first, on March 9, Dr. Benjamin Rush presented a paper of particular interest to this study, entitled, An Inquiry into the Effects of public punishment upon criminals and upon society.3 Another society, "The Pennsylvania Society for Promoting the Abolition of Slavery and the Relief of Free Negroes Unlawfully held in. Bondage" which had been formed in 1774, was now revived and reorganized. Benjamin Frank- lin was president of both these latter groups. The city of Philadelphia, at this time, was a thriving metropolis of nearly forty thousand persons, well supplied with stores, churches, markets, newspapers and periodicals, and all the various necessities which make for a happy pro- gressive community. The Pennsylvania Hospital was already in existence, having been established in 1755 ; there were the two rival colleges, the "College of Philadelphia" and the "Uni- versity" which were amalgamated in 1792. The `.`American Philosophical Society," which had been formed out of Frank- lin's "Junto," had been housed in a building in State House Square in 1785, where it is still located today. The confines of the city proper extended from Cedar (South) Street, on the south, to Vine Street, on the north, and east and west from the Delaware to the Schuylkill Rivers, although this territory was not all built up. William Penn had been rather meticulous in laying out the city, and especially generous in encouraging settlers to come from abroad to assist him in building a community which would be a credit to his vision. The district north of Vine Street was known as the Northern Liberties, and set aside for settling, with few re- strictions, hence its name; the southern suburb was known as Southwark, and extended from Cedar (South) Street to the open country. Many of the landed gentry had their country homes in these two suburbs, but the city proper contained homes of many distinguished and wealthy citizens.

3 See later section for résumé of this.

PA196 3ND OF THE PHILADELPHIA SOCIETY 3 Lnu- ,ical Founding of the Society ern- Of this character was the city of Philadelphia, when, on rhis that memorable day of May 8, 1787, just one hundred fifty )ers, years ago, this Society came into existence. From that day to ntal this it has been steadily and actively engaged in the same the work to which it was originally dedicated. For the first r of hundred years, it maintained the ponderous title which was ) the so characteristic of those days. But at the celebration of its tp on r centennial, it became officially known by its present name, for "The Pennsylvania Prison Society."' Free The charter members of the Society, together with those med who joined from time to time as the years advanced, repre- ank- sented many of the most substantial and intelligent citizens of early Philadelphia. Out of their busy lives they found time to ving meet together to discuss the problems of prisons and jails, of plied reforms, and prison programs. One glance at the pre- amble of their Constitution shows the seriousness of purpose: pro- "I was in prison and ye came unto me eady "And the king shall answer and say unto them, verily I say e the "Unto you, in as much as ye have done it unto one of the 'Ur& "Least of these my breatheren, ye have done it unto me." rican Matthew 25, 36-40. "When we consider rank - the obligations of benevolence, which are founded on the precepts and example of the author of Chris- louse tianity, are not cancelled by the follies or crimes of our fellow creatures, and when we reflect upon the miseries which penury, cedar hunger, cold, unnecessary severity, unwholesome apartments, forth, and guilt (the usual attendants of prisons) involve with them; it ivers, becomes us to extend our compassion to that part of man- kind, who are the subjects of these miseries. By the aids of n had humanity, their undue and illegal sufferings may be prevented; cially the links which should bind the whole family of mankind to- assist gether, under all circumstances, be preserved unbroken: and to his such degrees and modes of punishment may be discovered and suggested, as may, instead of continuing habits of vice, become Ls the the means of restoring our fellow creatures to virtue and happi- w re- ness. From a conviction of the truth and obligation of these wn as principles, the subscribers have associated themselves under the to the title of "The Philadelphia Society for alleviating the miseries luntry of public prisons" for effecting these purposes they have adopted the tained following constitution:" --5 4 See Journal of Prison Discipline and Philanthropy, 1887, p. 64, for an account of this change of name. The Society was incorporated April 6, 1833. See Appendix II, No. 5, for wording of the Act of Incorporation. 5 Society Minutes, May 8, 1787. PA197 4 INTRODUCTORY BACKGROUND

Officers were duly elected at this first meeting. Bishop William White, rector of Christ Church, was chosen president; Dr. J. Henry Christian Helmuth, rector of Zion Lutheran Church, and Richard Wells, attorney -at -law, vice presidents; John Swanwick and John Morris, both merchants, secretaries; Thomas Rogers, probably a merchant, treasurer. The Society was well supplied with physicians, as four were chosen to serve in that capacity, apparently as regular visitors to the Jail. These were Drs. John Jones, William Shippen, Gerardus Clarkson, and Benjamin Rush. There were also an electing committee and, more important, an acting committee.' The Acting Committee was from the first days the functioning body. It operates today in approximately the same manner as originally conceived by the founders of the Society. Before discussing the events which probably brought about the founding of the Society, it is of interest to note here its first official act. In the Minutes of the second meeting, held May 31, 1787, appears : "A member informed the Society that altho' an order had been issued three days since from the supreme executive council, that Barrach Martin (a negroe under sentence of death, but who had been pardoned) should be releas'd from his irons, yet they had not been removed, he is therefore recommended to the care of the acting committee." At the next meeting it was reported that this unfortunate prisoner had been released. The Society met in the German School House in Cherry Alley, near the corner of Fourth Street. It was the property of the Zion Lutheran Church, of which Dr. Helmuth was pastor. Apparently it was donated for the use of the Society, as there appears no record of any rent having been paid. The Society met here for about ten years, when it moved to a build- ing owned by the Carpenters' Company, where it continued to meet for nearly fifty years. Both the German School House and the Carpenters' Company building are still standing, although the former is in a somewhat dilapidated condition.'

6 The first electing committee was composed of : Isaac Parrish, Charles Marshall, Jonathan Penrose, Sohn Oldden, James Whiteall, Lawrence Sickle, Sohn Baker, Thomas Harrison, James Reynolds, Joseph Moore, Jacob Shoemaker, William Zane. The first acting committee was composed of: Tench Coxe, George Duffield, William Rogers, John Kaighn, Benjamin Wynkoop, George Krebs. See Chapter IV, section on Meeting Places of the Society. PA198 21 OF THE PHILADELPHIA SOCIETY an array its breech,-was pointed down the path in the faces of the motley of the establishment. This part of the drama of all to fail, had very nearly proved a failure. The play was likely for the army of actors did not respond. The curious look of and inquiry among the culprits betrayed that this surprise in belligerent demonstration was an unaccustomed feature prison discipline, and the quiet, sober, and respectful attention they which they seemed to listen to the address showed that with willing, understood the claptrappery of the keeper, and were not manner, to second his efforts. The 'keeper's battery' by their 33 was a standing joke for the prison for all time." amusing Regardless of the interpretation placed upon this it reflects episode, it remains historically interesting because of our early the attitude of petty officials who were in charge of these American prisons." No one questions the courage in negotiating this visit, for prison sermons were gentlemen that they relatively new in those days." But it seems certain who had more to fear from the obstinate, indifferent bully served as keeper than from the unfortunate inmates, who undoubtedly welcomed even a religious visit from outside those dreary walls.

The Law of September 15, 1786 It was imperative that the sanguinary codes of 1718 should soon after the Revolution. The terrible conditions be repealed the in the jails described above, together with the feeling on part of the colonists that these codes represented English rather than American thought, prompted the leaders of juris- prudence in Pennsylvania to focus attention on penal reform. Barnes shows in his History of Penology in Pennsylvania that as early as 1776, the new state constitution "directed a

33 op. cit. Webb, scarcely be called 84 The etching accompanying this episode can accurate, because Dr. Rogers, appearing as an elderly man, was only at the time; Bishop White was thirty-nine. thirty-six years of age that certain 83 Samuel Rowland Fisher, in his Journal, mentions Methodist ministers preached to the debtors of the Old Stone Prison. He also records that Dr. Duffield, of the Presbyterian Church, visited the This was as early as 1780. (See pp. prison to see one of the prisoners. day 90, 104.) Also "6 mo. 11th. This Afternoon & two preceding second afternoons, some Methodist preachers came to this Gaol & having all or nearly all the prisoners collected together in that call'd the Debtor's Yard under our Windows at 4 O'clk each afternoon, they Preached Prayed & Sang Psalms in their way. This afternoon in particular some of the Prisoners laughed & talked most of the time altho' several times desired to be quiet & attentive by the preacher." (p. 144.) PA199 22 INTRODUCTORY BACKGROUND speedy reform of the criminal code along the lines of substi- tuting imprisonment for the various types of corporal punish- ment." " As this is not primarily a history of penal legisla- tion, the reader is referred to Barnes' excellent treatment of the subj ect. The law of September 15, 1786," was ushered in with these thoughts: "Whereas, it is the wish of every good government to reclaim rather than to destroy, and it being apprehended that the cause of human corruptions proceeds more from the Impunity of crimes than from the moderation of punishments, and it having been found by experience that the punishments, directed by the laws now in force, as well for capital as for other inferior offenses do not answer the principal ends of society in inflicting them, to wit, to correct and reform the offenders, and to produce such strong impression on the minds of others as to deter them from committing the like offenses, which it is conceived may be better effected by continued hard labor, publicly and disgrace- fully imposed on persons convicted of them, not only in the manner pointed out by the convention, but in streets of cities and towns, and upon the highways of the open country and other public works." 38 't,'hile this law was supposed to be a reform, it was not so c.-)nsti ued by many of the intelligent leaders of the city of Philadelphia. It was considered degrading and humiliating. Fur instance, such prisoners thus "weighted down were employed at sweeping and scraping. After they had swept around them as far as the ball and chain would pernut, the manacled prisoners would pick up the balls and carry them to a fresh spot. The more malicious of them would often throw down the balls in such a manner as to injure passers-by." Most of the convicts were professional thieves, and adroit street robberies were frequently perpetrated by them. Besides cleaning the streets, they were employed at digging ditches, excavating cellars, grading, filling up ponds, etc. The harder kinds of labor were so obnoxious to some that they often declared their preference for hanging." 90 These felons wore a distinctive dress. "A parti-colored scheme was devised. The

32 Op. cit., p. 106. 37 See the Pennsylvania Mercury, rnday, September 8, 1786, for an account of this law. 38 Ibid., p. 107. 22 See Appendix II, Miscellaneous Writings, No. L 49 Scharf & Westcott, op. cit., Vol. I, p. 444.

PA200 23 SOCIETY OF THE PHILADELPHIA as, for would have sleeves of different colors roundabout yellow. red and green, black and white, or blue and example, colors." ." of the pantaloons were also of different The legs name of kaleidoscopic assembly usually passed by the "This tethered like cattle." " the wheelbarrow -men. . . . They were Thomas McKean particularly advocated the Chief Justice his of public punishment.° but it is not known what provision law were after he saw it in operation. Before the sentiments occurred. For was repealed in 1790, frightful tragedies effect, fifteen instance, the first day the new law went into 1787, prisoners of escapes took place. On the 19th of March, Street Jail attempted to execute a plan for a the Walnut force, general escape. It was necessary to call in an armed Another riot which killed one prisoner and wounded another. among the wheelbarrow men in July and one person took place in was seriously wounded. A few incidents that occurred effect are of 1789, the last year in which this law was in interest: 11-"A number of 'wheelbarrow men' con- Sunday, January the in the jail, endeavored to escape by digging away fined two or foundations. They were fired upon by the guards and three were fatally wounded." by Mareh-"The jailer, Reynolds, and a turnkey, were seized who robbed them of their watches, money, and 22 convicts, a hats, and the keys of the prison, and thrust them into They then attempted to escape, and six of them dungeon. by got out before the true state of affairs was discovered the other keepers." who had been at work September 18-"Five wheelbarrow men, of Centre Square, having discovered that two hi the vicinity on named McFarland, who were drovers, living brothers a consider- side of Market Street above 13th, had the south a plot to rob able sum of money in their possession, formed night they escaped from the jail, accompanied them. That to the the wife of one of their number, and proceeded by way in, they house of the McFarlands. Having forced their escaped. They killed one of the brothers, but the other about 82000 and left All were subsequently obtained crime arrested and hanged at Centre Square. This was the 61, "mentioned in the diary 41 See the Pennsukania Magazine, 18; p of an English Quakeress." (Ann Warder, Mar. 30, 1781.) A History of the City and its 42 Oberholtzer, E. P., Philadelphia: People, Philadelphia, 1911, Vol. I, p. 323. p. 443. 43 Scharf & Westcott, op. cit., Vol. I,

PA20 1 24 INTRODUCTORY BACKGROUND

that led to the abandonment of employing the convicts in the streets." 44 Roberts Vaux in his Notices describes the infamy of this law .9s follows:

"The law of 17.86, although in many respects less sanguinary than the former enactments, contained some provisions, the execution of which led to most injurious consequences. It directed that a certain description of convicts should be employed in cleaning the streets of the city and repairing the roads in its neighborhood; and authorized the keeper of the jail to shave the heads of the prisoners, and otherwise to distinguish them by an infamous dress. In this very objectionable manner they were brought before the public. The sport of the idle and the vicious, they often became incensed, and naturally took violent revenge upon the aggressors. To prevent them from retorting injuries still allowed to be inflicted, they were encum- bered with iron collars and chains, to which bomb-shells were attached, to be dragged along while they performed their degrading service, under the eye of keepers armed with swords, blunderbusses, and other weapons of destruction." 45

Just as the codes of 1718 outraged public opinion, so did the law of 1786. The most outstanding opponent was Dr. Benja- min Rush, prominent physician and surgeon of the city of Philadelphia, and signer of the Declaration of Independence. Dr. Rush made two definite contributions to the science of penology which were characterized by astute reasoning and progressive views." Not only was he opposed to public pun- ishment as codified by the law of 1786, but capital punishment as well. He penned two scathing denunciations of these penalties which deserve recognition even today. It is signifi- cant that his first pamphlet was read at a meeting before the members of the "Society for Promoting Political Inquiries," held at the home of Benjamin Franklin, March 9, 1787, which date is only two months prior to the organization of the "Philadelphia Society for Alleviating the Miseries of Public Prisons." The title of this pamphlet is An Enquiry into the effects of Public Punishments upon criminals and upon society. This pamphlet was undoubtedly conceived as a

44 Scharf & Westcott, op. cit., Vol. I, pp. 456 f. 45 P. 21. 46 See Lewis, 0. F., The Development of American Prisons and Prison Customs, 1776-1845, Albany, 1922, for a more detailed analysis of these two pamphlets by Dr. Rush, pp. 19-24.

PA202 CITIZEN CONCERN AND ACTION OVER 175 YEARS

NEci.Ey K. .I.I.:F.:L.Fats

Should the plan take place during my life, of establishing a permanent charity under some such tide as that at Philadelphia, vm: A Society for alleviating the rniserirs of Public Prison.t, and annuities be engrafted thereupon, for the above mentioned purpose, I would most readily stand at the bottom of a page for five hundred or ii such society shall he instituted within three years aiicr my death, this stun shall be paid out of my estate.

.wIt(rri.., the ditstinguished philanthropist, reformer and prison s1/4-106'eltysiltiiciir,iolhizilideHoward, on hearing of Ilse organization of the prison iphia in 1787.1 Howard's writings and activities were well-known Philadelphia prison reformers, especially through cur- ?espondence with their counterparts in England. We know, for

I hat 1)r. Benjamin Rush, who might well he designated god - "?her of the Philadelphia relbrm society, had an exchange of letters I'_1111 Dr. John Coakley Leasom regarding Howard's visit to prisons in Iirkey and other Mediterranean countries, 2 There can be no doubt fit nz itra(tiriiitsrktowoorganize a prison reform society derived from John Ward and Philadelphia in May 1787 was ass extremely exciting place. It was this very time that delegates were assembling to hammer out the :.onstituii,, or the new nation. The city was a thriving metropolis of fully ihousand persons, well supplied with stores, markets, itc.wspapers, hospitals and colleges-with all the necessities that con - "'we In the development of a sophisticated, progressive community. hi this thriving city at this bime a group of "gentlemen assembled" alit 'I -ay 8, in the home of Isaac Parrish, hatter, in Mulberry Conn 3 ag-reed to associate themselves in a society to be entituled Phi/ade/phier society for Oh 'via tole the nu iseries of public lyrisons%" ;`"' a hundred years the reform society maintained its quaint title but 111.J8k7. at its centennial, the name was changed to the Pennsylvania Soeie iv, by which it is known today-al this, its 175th anniver- ;"Y. lint from that May day of 1787 down to the present. the ()rpm - ion has been steadily and actively interested and engaged in the

Vail).. No/J(1,s of thr (Isiginat mut Nirocm:foe Efforts to ImproOe the p(A"Plinr of the Prison i Ph itorIrl Nilo, mut the rriotimal weir of IS"Aviiwoio; Tipton a fra' obsrrooilous oo he Pr'n a en ittsv SYsteio. Philadelphia. 2i! 11:7 (Pr i 1 le Society, October 8, 1787 " 'he west side m tee is of Sixth Streri between High (Afarket) and Mulberry {Arch}

5

PA203 same program to which it was initially dedicated-"the alleviation of the miseries of public prisons" and to the welfare of the immured as well as the discharged prisoner. The charter members of the Society, together with those who joined as die years passed, represented many of the most substantial and intelligent citizens of early Philadelphia. Thirty-seven of these gentlemen were charter members and signed the organization's const1" tution, either that first day or at subsequent meetings, Bishop William White, rector of Christ Church was elected president, 4 a post he con. tinned to hold for forty-nine years; vice-presidents were the Rev: Henry Christian Helmuth, rector of Zion Lutheran Church and Rich ard Wells, .attorney. The Society boasted of several persons whose names are closely associated with that exciting period; first and fore" most was 1)r. Benjamin Rush, signer of the Declaration of Inderew dente and outstanding physician of the War of Independence and' later, of yellow fever fame; Dr. john Jones, one-time physician for George Washington, Dr. William Shippen, Surgeon -General of the colonial army, Dr. Samuel Powell Criffitts, Tenth Coxe, one-time as sistant treasurer of the United States, Zachariah Poulson, Jr., printer and publisher, Charles Marshall, son of the diarist, Christi/ 41e' Marshall, anti once an occupant of debtors' prison, Dr. William Rogers' pastor of the First Baptist Church, Dr. George Duffield, pastor of the, Third Presbyterian church, Thomas Wistar, member of a distinguishe" and philanthropic family, and Caleb Lownes, engraver of the Great Seal of the Commonweahh, first manager of the Walnut Street ,]ail after the Society took charge, and secretary of the Mayor's Committee of Safety during the yellow fever plague of 1793. Later in the year, on August 13, some ninety-four new menthtr were inducted into the Society, among whom was Benjamin Frank/ili There is no evidence that Dr. Franklin ever attended a meeting 11111. apparently he paid his dues of "ten shillings, payable quarterly. Franklin, at this time, was 81 years of age. He died in 1790.

Contributions of the Prison Society to Corrections It has often been stated that the Philadelphia Society, which all agree is the oldest prison reform organization in the world-althoug' not the first one to give aid and succor to the prisoner-has been bctterf known abroad than in our own country. Professor Max Griinhut, Oxford University and an astute student of historical corrections, ha's, referred to it as 'a noble forerunner of similar organizations foonde.b in Europe under the influence of Elizabeth Fry." Further on ill th151 report may be found the appreciative statements made by the Eligh51 writer on crime and prisons, Margaret Wilson. However, as we look hack on 175 years of sustained concern for the prisoner, his abode, his rehabilitation and his moral lapses. On: sitlerabIe satisfaction can be registered. The Society is not withal"

' Bishop White did not preside at the first meetings as he was enroule home rww England. tic presided at the meeting her June 6

PA204 appreciation in its own country and certainly within the confines of the Commonwealth of Pennsylvania, it has always been and still is teNpected. Its achievements have been and still are unique. Initiator of the first penitentiary in the world, creator of the Pennsylvania System 0! Separate Confinement, and pioneer in the realm of friendly prison visu.ing-these achievements won for it early international acclaim Which persists even now. But we can muster other accomplishments that place the Society in the forefront of correctional progress: a crusader Far the indeterminate sentence, for parole; for the volunteer (lefender movement; for the creation of a separate House of Detention 16r the untried prisoner; for developing a professionally -trained staff to L'IrrY on the work of prison visiting and aid to the discharged prisoner.- Some of these arc unique and all testify to the convincements and OYnainic growth of the Society through the years. In other more con- ventional areas of corrections the Society has assumed cooperative ICZIdership with other similar societies and reform groups-such as in the knotty and perplexing fields of prison labor, probation, inspection aaacl reform of county oirs, capital punishment, development of citizen - s1;11, participation and public relations, and in a host of other matters. "f our achievements we are proud; of our disappointments and failures We are fully aware and of the future challenges we are cognizant. In utPping back to the beginning of its organization we are more than tempted to delineate the Society's past-for the reason that we are 175 Yea's old and are frankly proud to inspect and describe it. The Society is Organized-its First Acts 'Them is that the leading spirit in this justification to assume launching reform society was Benjamin Rush, the doughty, humane, contro- versial, deeply devout, colonial physician. He, with others, was shocked at the evils of a law which had been passed as a reform measure by the regidature the previous year, on September 15, 1786. This law called 'or convicted felons, then lodged in the Walnut Street Jail, to be sub- iected to "hard labour, publicly and disgracefully imposed . . in streets of cities and towns, and upon the highways of the open country Ziti other public works." This Iaw, sponsored by Chief justice Thomas ei(ean. was initialed as a substitute for certain capital offenses. Under the new dispensation, the convicts were led out of the jail, their heads shaved, carrying in their wheelbarrows, balls and chains riveted to their ankles, and dressed in a bizarre distinctive dress of multi -colors. As an Frtglish Qnakeress. Ann Warder, wrote of this motley crowd emerging :um the little jail, which stood directly behind Independence Square _t Sixth and Walnut Streets: "A parti-colored scheme was devised. The. ra()Iindabont would have sleeves of different colors as, for example, red Intl green, black and white, or blue and yellow. The legs of the panta- ,.").uos were also of different colors." 5 E. P. Overholzer, Philadelphia wrote of them: "This kaleidoscopic assembly usually passed Y the name of the 'wheelbarrow men . . .' They were tethered like F'ennsyhwtsia magazine. 18: fit (Marrh SO. 1787) 7

PA205 cattle." in Philadelphia they were employed at digging ditches, ex- cavating cellars, grading, filling up ponds, etc. It has been recorded that some of these degraded persons expressed a preference for hanging rather than to continue to work and exist little better than cattle. Not only was the work onerous and humiliating, but the convicts were the butt of ridicule of the idle and coarse members of the city who followed them about, sometimes hurling garbage or stones at the hapless victims of the Chief justice's law. In response they heaped curses upon the mocking and tormenting rabble. Dr. Rush was bitter against such a short righted method of dealing with the criminal. He acted promptly. He prepared and read a paper at the home of Benjamin Franklin on March 9, but two months before the prison reform society was founded. The title of this epoch-making paper is: "An Inquiry into the Effects of Public. Punishment upon criminals and upon society." Rush contended that public penalties tend to make bad men worse and to increase crimes by their influence upon society. He adds that the reformation of a criminal can never be effected by such a punishment. He maintained it was connected "with infamy, [and) destroys the sense of shame, one of the strongest outpost" of virtue." How well this paper was received we can only surmise. During the next two months it is quite passible, and even probable, that Rush' discussed his ideas as well as the workings of the law under attack. with many the city's representative citizens, However repuguani let Rush and to others the "wheelbarrow" law was, it had its adherent' who respected the concepts of Justice McKean, long a distinguished have figure in Pennsylvania jurisprudence. It is believed that Rush may called the first meeting of the group for May R and as one exattnue'' the title page of the Society's Minuies, he can easily distinguish name of tile great physician ;iml reformer leading the list of citadel members. One need not call upon Philadelphians nor, for that minter' Americans, to vouchsafe the significance of the First meeting of the Society. Writing in 1931, an astute observer of the field of corrections Margaret Wilson, an English woman, writes in her work The Crime '11 Punishment: "If an American wants to find out exactly what the hackneyed term 'mingled emotions' means, he would do well to read the accounts of this society's proceedings. He will not know whether to laugh or cry over the strange mixture or the lovely and the ter- rible. He will be proud and ashamed of it now. He will be apt to find it much more interesting and infinitely more important than most of the colonial military history he has learned in school...

"Philadelphia: A History of the city and its People, Philadelphia, 1911, Vol- I, q In 1954 the Society republished this pamphlet, together with another Dr. Rush, dealing with capital punishment, 'These are available logemer publication entitled "A Plan for !he Punishment of Crime" and may he e,l,iaineKl by whim; the Society, 311 S. Juniper St., mita, 7, Pa, enciosing fifty (1,."''' of the original Rush pamphlets are extremely mare. 8

PA206 She then has this to say regarding the preamble of the society's Constitution which appears here on page I. "It makes sounder sense than most or the Declaration of Independence," Then she adds: "Could this program be improved upon today? They went further. The committee was 'to examine the influence of confine- ment or punishment upon the morals of the prisoners.' This was an ama.ing and a still unrealized program. Most states nowadays have officials to examine the effect of doctors' medicine upon their victims. They have coroners. What state has an official to examine the effect of a judge's sentence upon the convicted? Why is this officially never looked into?" "

In the Minutes of the second meeting (May 3i) we find it re - ':ca' 'd: "A member informed the Society that altho' an order had been 'ssued three days since from the Supreme Executive Council that tiarrack Martin (a negroe under sentence of death, but who had been Pardoned) should he releas'd from his irons, yet they had not been renmved, he is therefore recommended to the care of the acting com- mittee." It was reported at the next Meeting that this unfortunate pris- %er had been released. Rut who was Barrack Martin and what had he done? Within the riThlt past we have learned something of this unlettered and socially r'bseure convict. He was probably t slave but we do not know who his (}weer Was, He had been sentenced to death for arson and had been Pa/dotted. His case appears very briefly in the Colonial Records (actually die Al ililetrs of the Supreme Executive Council) Vol. XV, 205 April 28, 1787. The Council had granted him a pardon "on condition rie depari this state forthright, and not return." But the jailer, John .fteYnolds-more of him later-had apparently defied the Council by Ignining the order.

The Visit of Bishop White and Dr. Rogers to the Jail Relore proceeding to a discussion of the major business of the during its first months, it is of some importance historically to review one of the legends that has long persisted. It has to do with a visit to the Walnut Steed jail by two charter members who were emi- lsetft divittes of the city-Bishop William White and Dr. William 7"14ers, some time in 1787. By this time the Society was making its eniands felt in the legislative hails, demands that were significant and noroughgoing, involving the vested interests of the authorities who enianaged the jail, including the jailer. Reynolds, While this dramatic 4)150de has been described by earlier historians of the Society, notably Al!lierts Vaux in his Notices, there is no mention of it in the Society's it'unfos. liarwever, as the first volume of the minutes of the Acting is last, ii is possible that the event was recorded. VallX mere - 0): mated that the incident was related to him by one of the members file Acting Committee. However, the trip to the prison was related

'Rai -court, Brace, 1931, l99.200 9

PA207 in the reminiscences of an alleged keeper in the jail, one William Webb, whose newspaper stories may be found in the Philadelphia Sunday Dispatch, for the dates October 16, 1859 -February 5, 1860. The story states that the two ministers called upon the keePer' Reynolds, and requested the opportunity of preaching to the inmates. The request was refused on the grounds that such a venture was fraught with the greatest of perils. He claimed that the prisoners would take advantage of the situation and not only lay hold of the gentle- men, but also attempt a jail delivery by holding them hostages. He painted his charges as desperate, depraved and untrustworthy. Haw sincere he was is debatable. Upon the matter of his sincerity hinges the importance of the story. Some historians of the Society believed that the jailer entertained deep concern for the ministers. This point °. view is supported by the fact that later, when he was ordered by his superior, the sheriff, to permit the gentlemen of the clergy to enter the prison, he urged them to leave their valuables at the door, lest their pockets should be picked. Then he had a cannon placed on the plat- form with an attendant standing nearby with lighted bitstock, Pre- pared to set it off. should the occasion demand. Of course, notbnlg happened, and it is reported that the good men proceeded with thOr sermon and prayers, commanding the respect of the miserable in mates.2 Keeper Webb, in his Reminiseenses, makes light of the incident' insisting that the jailer, Reynolds, derived keen sport out of the "bur' lesque" he engineered. lie ends his account by stating that the keeper's battery was a standing joke for the prison for all, time." fr°111 time to time throughout the history of corrections, prison reforrne,rs and organizations concerned with the improvement of conditions to prisons have not seen eye to eye with keepers of prisons. 'An Howard' the great visitor, was none too welcome when -lie called. upon offulats penetrating and asked them and sometimes embarrassing- questions - We have some knowledge of Reynolds who refused to free 13arraci' Martin from his irons and who attempted to embarrass the miuis1er5. He had been a tavern owner-the White Horse Inn in Elbow Lane- and was jailer in the Old Stone Prison, succeeding one Stokeiey Hnssi man. Samuel Rowland Fisher, mentioned above, had been incarcerl in this colonial jail which stood on the corner of Third and 11 Streets. He had some opinions of Reynolds as well as of Hussman' an in a familiar etching depicting this episode, the person preaching is drawn a5 old man. Bishop White was 39; Dr. Rogers was M. It has sometimes been 513 that this was the tint time a sermon was preadied in a prison. This is not at 3 accurate, even in Philadelphia. Smoot.] Rowland Fisher, a -coracciemiims elqc"f)r,. during the American Revolution, was incarcerated in the Ohl Stone prison (E7' d 1781) and kept a journal. He wrote that "each alien -noon ministers came anal Preached and Prayed and Sang Psalms in their way" as early as 17M. See Parlio of Samuel Rowland Fisher, pub, privately by Ann Wharton Morris, undaird, of 104, 144, He adds that Dr. Duffield, Prcithyterian minister and later a melOcr the Society) also visited the jail. (For a picture of this service, see They Wl' Prison, opposite p. 17.) 10

PA208 the latter he stated: "he was the most unfeeling Man that I remember to have met with . a rough, hard-hearted Man." He was glad to see a change to Reynolds and initially wrote of him: "Upon what motive Reynolds acts I know not, nor will his civility to me tic our friends be lasting, yet he appears to he a Man not addicted to excess in drinking as far as I have perceived is likely to keep order in this house." This Prediction was premature since there were both escapes and brawls in that prison during Fisher's incarceration. Later the Quaker pacifist had occasion to make this appraisal: "He is a Man of much Art & low cunning without a principle of integrity." A further appraisal of Reynolds comes from a contemporary phy- stclan and scientist, Dr. James Mease. He stated that. Reynolds "had grown wealthy by the abuses which for a long time had been tolerated, and feared the introduction of a system which would cause his conduct to be closely watched, and the garnish fees, sale of liquor, and other per- quisites to cease." " When, in 1789, the management of the 'Walnut Street jail was tinder attack by the Philadelphia Society, Reynolds, apparently finding himself and his position in jeopardy, made the rounds of persons of Influence soliciting testimonials. Recently, by chance, a number of these were discovered in an issue of a contemporary newspaper, dated Octo- ber 13, 1789. 'Fltere is a letter addressed to the sheriff, James Ash, signed 1-1 a number of citizens, excerpts of which read: "We are aware of the mammy frivolous and other accusations Which have been made secretly and openly alleged against Mtn [Reynolds]. But, Sir, arc reputations to be sported with and destroyed by machinations of artful, and perhaps, interested men? H this is admitted, let us ask, Whose character, whether private

or public, is safe from shafts of envy and malice? . . . Have the accusers of Capt. Reynolds ventured to hring forward a single Impeachment against him? No. Have they not exerted every tumli- ver to affix divers species of guilt upon him and have they succeeded? No ... Wherefore, we your fellow citizens from the purest of motives and the strictest attachment to our lives and properties. entreat and recommend it to you to continue John Reynolds. Keeper of the Public Gaol of this city because he is the most resolute and suit- able person we know for this important station." 11 William Rawle, attorney amid member of the Philadelphia Society, Wrrne in lieh,ilf of the heleagtn-ed jailer: "I do not think all the charges against Reynolds originated in envy or malevolence; yet, as none of them has been judicially supported, there is great reason to believe they were erroneous. In general, I believe him well qualified for the trust '111(1 recommend him to the Sheriff accordingly." Other prominent citizens, a few of them members of the Society, also backed Reynolds

'5? ""hzd it) Scharf F.: Wesicott, A I fisiory of Philadelphia, toli9-18,v1, Philadelphia, 13.884, Vol. ill, 11;211 Pennsylvania Parket & Daily Advertiser. The letter was signed by Plunket Flccson, Isaac Howell, Wni. Rush, Jo Wharton, Jacob Weaver, Samuel Wharton, Peter Z. I3(10. and George Campbell. Howell was a member of the Philadelphia Society. ii

PA209 in the Press. Among them were Jared Ingersoll, John D. Sergeant, A.J Dallas, Moses Levy, Joseph McKean, and John D. Coxe. 12 At this late date we have no knowledge of bow Reynolds Vi"15 deposed from his position nor do we know who preferred charges against him. We do know however that following the renovation elf the jail-taking place at this very iimc-Reynolds was ousted. The nen jailer was Elijah Weed, assisted by leis wife. to The Society Begins Operations The Society's initial objective was the repeal of the Act of Septenl: ber 15, 1786, the so-called "wheelbarrow" law. During the three yea" in which the organization was preparing its case, shocking occurrences on the city streets were recorded in the press. Here are a few in 1789: Sunday January 11: "A number of wheelbarrow men endeavored to escape. They were fired itimin by the guards and two or three of them were fatally wounded." March: "11w jailer, Reynolds, and a turnkey, were seized by 22 convicts who robbed them of their watches, money. and hats. and the keys of the prison, and thrust them into a dungeon. They [hell attempted to escape, and six of them got out before the true state of affairs was discovered by other keepers." September 18: "Five wheelbarrow men who had been :it work in the vicinity of Centre Square. having- discovered that Iwo brothers named M'FarIand, who were drovers, living on the south side of Market above 13th, had a considerable sum of money in their possession, formed a plot to rob them. That night [hey escaped and, accompanied by the wife of me 1P1 ihern, proceeded to the house of the M'Farlands. Having foiled their way in, they killed one Of the brothers, They obtained about $2,000 and left. All were subse- quently hanged. This was the crime Ma led to the abandonment of employing convicts in the streets,- 14

In the October 1787 meeting of the Society a committee was charged to look into the workings of this unpopular law and relX/11. forth The committee reported at the meeting of January 29, 1788 and with the Society drafted and sent to the legislature its first Men -10143' begging for the repeal of the law. It also made the significant rec°11I mendation that as a substitute, "punishment by more private or evel syffitary labour" be enacted which would "more successfully tend tai reclaim the unhappy objects" of the prison. This Memorial, as well as many others running through the nes' hundred years, was the unique means the Society utilized in expres-si4 its dissatisfaction with prevailing conditions in the field of correcti°11

19 other persons signing letters of iesiimony Io John Reynolds were: S. Ler!' Barton, John Hallowell (probably the son of Jacob, jailer of the prison some Swift, .john John later), Charles Todd. Benjamin Morgan, jamb 1 -towel! and Wells. Todd was a member of Me sorioy, 18 Keeper Weed died of the yellow fever plague of 179 and his widow, Niar!, ceeded him. She served until 17fHi. She was probably the first female in 111 country, at least, to administer a prison. " Scharf lk Westcott, op. cit., Vol. 1, 155 f. 12

PA210 The influence of these Memorials was powerful, due largely to their k. 'Pc and persuasiveness, as well as to the influence of their authors. 35 rite legislatures pondered, with understanding and respect, the sug- RTSted reforms offered by the Philadelphia Society. The significance of this Memorial has long been accepted by stu- Uems of corrections. In a sense, this was a petition for a "new deal" in the treatment of the offender. Roberts Vaux, one of the city's leading citizens, wrote forty years later that "to this measure Pennsylvania °Wes all its subsequent improvement in her prison discipline and Penal laws which have attracted the approving notice of statesmen and Philanthropists throughout the world." " The Supreme Executive Council asked the Society to submit sPeafic information regarding the conditions in the local jail-the Wal- iut Street jail-the better to initiate legislation in the area of corre c- rts. The conditions existing in this establishment beggar description. ew people today can appreciate the squalor, debauchery, degradation, `;1t1 misery that were the state of affairs in most common jails of both mgland and America in colonial days. In general they were mere c4tc1i-alls" for the derelict, the beinunbed, the apathetic flotsam and letsaun of society of those days. The Philadelphia jail, begun in 1773, Partially finished in 1776, was turned over to the British as the "Pro- ' in 1777, It had received its first prisoners from the earlier Old Sjt6tie Prison, mentioned above, in 1776 and at that time, was figura- wely christened transfer. by the escape of six of them on the first night of the it was reported by contemporaries that conditions in the so-called ...eW Jail were no better than in the older jail. In fart, a group of 'is led by the well-known glass manufacturer, Richard Wistar, ,rd organized a relief society which had for its purpose the succor of miners and their families. Known as the Philadelphia Society f'or ""ing Distressed Prisoners, it carried on for some nineteen months trc until the city was occupied by British troops. (from February 1776 weeSeit;eirmbwers,llbro 1777) Its members walked through the streets pushing on which were signs reading "Victuals for the Pris- °ners." 1787 the jail was a well -established institution but conditions Were depi,hie. The committee of the Society which investigated the einagethent reported its bill of particulars which finally reached the Of the Supreme Executive Council. Among the complaints were: sufficient food and clothing for the untried, as well as for debtors; de-

;111IY tweniy-Gve Memorials were sent to the various legislatures throughout the ,c.,,"r-ftolo the first, January 29, 1788 to l893: others were drawn up 1)111 not 'The wording of 'hese memorials appear in They Weer in Prison, Appendix 417.1M ils..Tires. 24 ?,3.7r1 & Westenitt, rip, cit., I, .105 cnices of the meetings or this Soddy have been found in the various issues of Peutivavanin Evening Post, February 8, 24, March 12. August 27, 1776: for ,ZY of this "parent" mg:mi./mum, see Prison Journal, Vol. -XXIV, No. 4 `"crober 1944) 451 f. Is

PA211 bauchery so far as housing was concerned, both permittedi:negleCt intermingle in promiscuous fashion, as wellasselLi ristnxse ofra n;u kind of classification of oilenders-the youth from the hardened offen- der-all fraternizing in demoralizing fashion; no employment whatso- ever; and to top it off, the actual presence of a bar within the wall' where "spiritous liquors" could be purchased by the prisoners. This, of course, was customery in local jails and was accepted as one of the privileges of the jailer to operate. in concluding, the committee stated emphatically: .. On the whole, the committee think it their duty to declare .. that they are of tlllanimnus opinion that solitary confinement 0 hard labour, and a total abstinence from spiritous liquors will prove

the most effectual means of reforming these unhappy creatures . - and by keeping debtors from the necessity of associating with those who are committed for trial, as well as by a constant separanon of the sexes?' The effects of this, as well as of the earlier Memorial, were sweet'. ing. The law of March 27, 1789 enacted all of the chief recommentla. Lions of this document. During this interim (1787 to 1789) the Society had been prison reform in England, initiated by the fatuous, but eccentric, PI Howard. Howard, after visiting many houses of correction, jails a" prisons Of Europe, had formulated his penal philosophy in a work e". titled Stale of Prisons, published in 1777. In this he advocated 'he establishment of penitentiroy-houses in which each prisoner would assigned his own cell, or room, where he could work, eat, sleep, aj'i commune with God. He even urged that a "little garden" be atoll'ec to each cell where the inmate could till the soil and grow his o"r" vegetables. He was a strong advocate of solitary confinement as a ine2a1- of reflection and eventual reformation. He saw in it, also, a guarantee against contamination, one convict by another, the glaring result congregate penal establishments. Parliament passed the Penitentiary Act of 1779 but due to lack funds, no penitentiaries were built. However, there were some refol initialed a few local prisons. One such jail was in the small village' Wymondltam, Norfolk Crum y, which Sir Thomas Beevor operated 31.111. controlled. The transformation that took place in this little jail Mali, attention in this paper because the Philadelphia Society learned 01- and published its story in its first printed material. Few persons eve. in England realize the historical importance of the reforms made 10 of the administration this jail by Sir Thomas under the Penitenti31v.1 Act. It may be contended that the Wymondham jail is, in truth, the "cradle of the penitentiary," rather than the Walnut Street PI 1° lowing the legislation of 1789 and 1790. It was Harry Elmer Ratites who first recognized the significance of Beevor's influence on the rile. delphia Society. In his Evolution of Penology in Pennsylvania he scribes the program set up in the Wymondham jail: "In this "model jail" were to he seen in actual operation all of the new principles [enunciated by Howard -I which it was hoKd 14

PA212 might be introduced in Pennsylvania. Cells were provided to keep the different types of offenders separate and the sexes were segre- gated in different parts of the building. Solitary confinement was said by Sir Thomas to be more effective than whipping- and that Part of their punishment front which reformation is chiefly expected." The new system was found effective in every way. By Providing hard labour for all on six days of every week, it was lfiond that many prisoners earned more than double the cost of their maintenance. As a reformatory agency the results were not less satisfactory. It had not been found necessary to punish any Inmates by confinement at irons..." le The Philadelphia Society declared that exactly what was needed at home was to follow the English example and to "make our prisons Pterntentiary houses and places of correction." In fact, the Society caused Lpublished a forth the bet pamphlet setting reforms of Sir Thomas so Philadelphians could readily understand what the objectives w,,"e,re. 2° As Barnes states: "The chief purpose of that pamphlet was to 'aY the feat- that the proposed reforms contemplated would not prove wcoiable or economical." Thus we find the Society's main objectives realized: the repeal of tale "wheelbarrow" law, by the Act of March 27, 1789 and of the acceptance of its new concepts of corrections-the substitution of pri- separate, congregate or solitary confinement at hard labor for the public, and debasing type of treatment. The Act of April 5, 1790, 1,n'cit superseded the earlier act of March 27, 1789, created a pen iten- '47y for all convicted felons from all parts of the Connuonwealth. This rntlentiary was in reality a three -storied cell house with individual for the solitary incarceration of those sentenced by the courts to this w15 type of treatment or punishment. It is the creation of this structure its attendant function that marks the turning -point in American :rrectional philosophy. It was also this cell block within the confines refthe little jail that was later referred to as the American system of Qrmative prison discipline. This appellation was laid on by the °tett Prussian penologist, Dr. Nicoiatis Heinrich Julius in 1839." dr. Dr. James Mease, the Philadelphia physician -scientist, waxing 1041-rla tic perhaps, stated: "The task to which the Society was dedicated tu'oi. truly arduous. An Augean stable of filth and iniquity was not only litibe cleanse, but industry and morality to be introduced and under irulties that seemed almost insurmountable." 22 The New Dispensation 011e brief decade encompasses the halcyon period of the renovated ;Ind the creation and development of the penitentiary concept, un- :1thIM-Merr ill, 1927, 92 ,:xlritco and Remarks on the Subject of Punishment and Reformation of Criminals, "114ailelphia, February 25, 1790. This is a rare pamphlet but a copy may be found .301n the Library Company of Philadelphia Z.1intell by Orlando F. Lewis, The development of American Prisons and Prison p!noriss, 1776-1893, Albany, N.Y., 1922, 27 "lire of Philadelphia, 1811, 163 15

PA213 pletnented in the cell house erected in the jail yard. That decade, [1001 1789 to 1799 stands out in the history of American corrections Its a beacon of scintillating accomplishment. Short though that period was, it demonstrated that a new era in the treatment of criminals Was evolving and, further, it sparked an entirely new concept or philosophY of reform, During the period news of the new dispensation spread abroad and many visitors made pilgrimages to the little prison. After viewing the administration of the establishment, they returned home to extol its virtues. It was, and still is, problematical which of the Iwo features 01 the Walnut Street Jail was more important to the field of W. rections-the sweeping renovation in administration of the estate' lishinent, or the creation of a penitentiary with its underIy1 philosophy of separate or solitary confinement at hard labor correctional people are dedicated to humane reforms in the held and most of the information we have regarding that progressive decade places the emphasis on administration of humane a" rational penal practice. We shall deal with this phase of the pro- gram of the Society first. Aside from rendering a thorough cleansing of the jail, by rePlac,-, ing the jailer and dispensing with the bar and its "spiritous the managers (recommended by the Society) established a construc- tive labor program by which inmates could become entirely self- supporting, separated the sexes and, in due time, set up a churcl! (inside the walls), a school, and a library. Writers, such as La Roche" Foucault', the French moralist, and the South Carolinian, Robert Turnbull, wrote in glowing terms of the metamorphosis that had transpired. It seems that the leading spirit behind these rer"rn was the Quaker, Caleb Lownes, charter member of the PhiladelP11; Society. Aside from his fame in being the "first prison administrator in the country." Lownes was an engraver who designed the Great Sealf of Pennsylvania. He was also secretary of the Mayor's Committee Safety during the yellow fever plague of 1793. This man, wil°5: accomplishments were so versatile, has been all but neglected by Philadelphia historians. The later years of his life were spent as ar, Indian agent in Indiana Territory at Vincennes. While nothing appears in the records of the Society to allocate credit for the reforms inaugurated in the prison, we find contemPorica,i sources that reveal to some degree the influence wielded by sorne.ito instance, we may point to remarks made by La Rochefoucatild an Dr. Mease that indicate that Lownes was responsible for much tll's occurred during that experimental decade. The former wrote: "It WI., Lownes who animated his hrethern with the hope of carrying thr°"Tigil their benevolent and sublime project. It was Lownes who proposed 3,0 effected the change of discipline; who proposed to substitute a nu , ohm. 4. La Rucheloucauld, On the Prisons of Philadelphia by an European, rho, 179fi; Robert J. Turnbull, A Visit to the Philadelphia Prison, etc. PhilailcIP" 1796 I6

PA214 and rational, but firm treatment, in the room of irons and stripes; and who without relaxing in his efforts, patiently bore to be treated as a visionary in full confidence of the good to be obtained by severance. per- He, in fine . .. became the principal agent on this respect- able work of reason and humanity. The penitentiary system created 1.4 1791 [sic] in Pennsylvania whence it extended almost simultaneously In all states of the Union." 24 Dr. James Mease gives Lownes anti a colleague, also a member of the Society-John Connelly-credit for the reforms. He writes: "They 'flay be justly ascribed the merit of bringing to the test the fullest and most successful experience, the humane principles of the new penal code." 2.. But it was actually the three -storied cell house with individual cells and what it stood for penologically, that was the unique contribu- tion of the Society. This structure was the embryo of the penitentiary system that was to bring both fame and criticism to Pennsylvania for Years to come. The acts of 1789 anti 1790 stipulated that the more g'ut's offenders convicted throughout the entire state should be sent In thistills establishment for at least part of their sentence. As La Roche- put it: "Those condemned for crimes heretofore punishable 'Y death whose sentence always includes the article of solitary con- riernent during a period of their detention of which is fixed at the Pleasure of the judge, except that according to law, it must not exceed (Ine-baif nor be less than one -twelfth of the whole period." 26 Just how many prisoners, sentenced by the court, were placed for 1 period 0f. time in the penitenamy_honse, with its regime of solitary nniinement, is moot. Thorsien Scllin. after examining the surviving (ir"ckvis of the jail, observed that "the experiment was highly over- :1(ed." For instance, in 1795. out of 117 convicts admitted, only 4 ':'rived with sentences requiring that they spend part of their time 1.1, solitary confinement; in 1796. of 139 admitted. 7 received sentences of solitary." 27 La Rochefourauld describes the situation of those prisoners who ere condemned to this penilentiary-house: " . . . the prisoner sleeps si" a matress and is allowed a sufficient quantity of clothing, In this r tilation, separate front every other kind, given up to solitude and ,ellexion, and to remorse, he can communicate only with himself. He (75 the turnkey once a clay to receive a small pudding made of Indian hur l? together with some molasses . . . During his whole confinement e Is never allowed to walk out of his cell, even into the passage." " bp.; With some slight modifications this describes the situation of ab- s°ners sent to Pennsylvania prisons for fully a century after the °ye words were written. It was also the situation of thousands of ;:------, ;'' Rochefoucautd. 22 )I' oil.. 1(13 .7..)1,1,- cif.. In \ni.iil?ifelphia prisons of the Eighteenth Century," in Historic Plaimirlphia, 1 '",rim Philosophical Sociely, Philadelphia, 43; Part I, I953, 32Y 4 kochefourauhl. op. cif., 10 17

PA215 LINNERSITY Or PIEMPISYLvANIA Himotical Smiery PRES, of Pennsylvania

The Society for Political Inquiries: The Limits of Republican Discourse in Philadelphia on the Eve of the Constitutional Convention Author(s): Michael Vinson Source: The Pennsylvania Magazine of History and Biography, Vol. 113, No. 2 (Apr., 1989), pp. 185-205 Published by: The Historical Society of Pennsylvania; University of Pennsylvania Press Stable URL: https://www.jstor.org/stable/20092327 Accessed: 16-01-2019 21:31 UTC

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PA216 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms The Society for Political Inquiries: The Limits of Republican Discourse in Philadelphia on the Eve of the Constitutional Convention

THE SOCIETY FOR POLITICAL INQUIRIES was formed Feb- ruary 9, 1787, to promote the study of the "science of gov- ernment." Interestingly enough, despite the Society's name and the imminent meeting of the Constitutional Convention, the members at meetings of the Society for Political Inquiries virtually never discussed theories of government. Instead, the Society's mem- bers turned toward topics of republican interest and little partisan significance (at that time).'

I would like to thank Neil Longley York, who first suggested the Society for Political Inquiries as a topic. I also want to thank the History Department of Brigham Young University for research funding, and the helpful staffs of the American Philosophical Society and the Historical Society of Pennsylvania. ' The lower-case word "republican" is used by some historians to describe the sometimes political, sometimes reform -minded, and sometimes economic ideology of early Americans. Robert E. Shalhope notes that the difficulty of identifying specific attributes of republicanism stems from its ambiguous usage by early Americans: "republicanism represented a general consensus solely because it rested on such vague premises. Only one thing was certain: Americans believed that republicanism meant an absence of an aristocracy and a monarchy. Beyond this, agreement vanished." See Shalhope, "Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in Early American Historiography," William and Mary Quarterly (hereafter, WMQ) 29 (1972), 72. Ruth H. Bloch has questioned the attempt by historians to "encompass all revolutionary culture" within the debate over classical republican theory. Bloch notes that republicanism, "broadly speaking," had multiple intellectual roots in liberalism, Scottish moral philosophy, Puritanism, evangelicalism, and classical republican theory. See Bloch, "The Constitution and Culture," WMQ 44 (1987), 552-53. It is in this broader sense that I use the term "republican" in this paper. I use the capitalized word only when referring to the Pennsylvania political party of the same name. For more on this subject, see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, 1967); Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, 1969); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975); Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca, 1978); Joyce Appleby, Capitalism and a New Social Order (New York, 1984); Ruth H. Bloch, Visionary Republic: Millennial Themes

THE PENNSYLVANIA MAGAZINE OF HISTORY & BIOGRAPHY Vol. CXIII, No. 2 (April 1989)

PA217 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms I86 MICHAEL VINSON April

The Society's purpose in promoting knowledge and discussion had European antecedents in learned societies or societe savante.2 Carl Bridenbaugh studied the American version of these voluntary asso- ciations in Philadelphia before 1776 and concluded that they em- bodied the philosophy of the eighteenth century in their search for knowledge and ways to promote it.3 These societies, followed later by the American Philosophical Society, all helped to "propagate the enlightenment" in Philadelphia.' After the War for Independence, voluntary associations concerned with problems of political theory and practice began to take shape. The partisan version of these political societies appeared in the Whig societies of the 1780s. The Whig Society of Philadelphia, which later changed its name to the Constitutional Society, organized to defend the Pennsylvania state constitution. (Several provisions of the state constitution came under attack in the late 1770s and early 1780s, but most important to the Constitutionalists was the unicameral leg- islature.) At the same time, a partisan group of Philadelphia elites established the Republican Society to lobby for a bicameral legislature (among other activities)!

in American Thought, 1765-1800 (New York, 1985); Alan Heimert, Religion and the American Mind: From the Great Awakening to the Revolution (Cambridge, 1966); Garry Wills, Inventing America: Jefferson's Declaration of Independence (Garden City, 1978); Robert E. Shalhope, "Republicanism and Early American Historiography," WMQ 39 (1982), 334-56; Joyce Appleby, ed., "Republicanism in the History and Historiography of the United States," American Quarterly 37 (1985), 461-598; Gordon S. Wood, "Ideology and the Origins of Liberal America," WMQ 44 (1987), 628-40; and James D. Tagg, "The Limits of Repub- licanism: The Reverend Charles Nisbet, Benjamin Franklin Bache, and the French Revo- lution," Pennsylvania Magazine of History and Biography (hereafter, PMHB) 112 (1988), 503-43.

2 Bernard Fay, "Learned Societies in America and Europe in the Eighteenth Century," American Historical Review (hereafter, AHR) 37 (1932), 265.

3 Carl Bridenbaugh, "Philosophy Put to Use: Voluntary Associations for Propagating the Enlightenment, 1727-1776," PMHB 101 (1977), 70-88. Ibid., 70. Adrienne Koch sees the Society for Political Inquiries as another attempt to study practical political theory in the age of the American Enlightenment. See Koch's "Pragmatic Wisdom and the American Enlightenment," WMQ 18 (1961), 313-29.

5 The most complete study of the conflict between the Constitutionalists and the Re- publicans is Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 (Har- risburg, 1942). For a thorough discussion of these groups as political parties, see Jackson Turner Main, Political Parties Before the Constitution (Chapel Hill, 1973), 174-211. I believe Main's model to be valuable for identifying divisions, but limited in acknowledging the

PA218 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 187

The Society for Political Inquiries was one of several non-partisan political groups of the 1780s known to have formed to study and examine new theories of government.6 The preamble of the Society, written by Thomas Paine, stated that Americans had "grafted on an infant commonwealth the manners of ancient and corrupted mon- archies." The Society resolved to undertake the "arduous and com- plicated science of government" which had previously been left to either "practical politicians" or "individual theorists." With this in mind, the members agreed to associate themselves under the title of the Society for Political Inquiries and to abide by the Society's laws and regulations.'

transience of individuals between parties. For example, Thomas Paine was a Constitutionalist for the first part of the 1780s, yet he later aligned himself by the middle of the decade with Republicans such as Robert Morris and Benjamin Rush. Richard Alan Ryerson has synthesized the scholarship of Owen S. Ireland and Douglass McNeil Arnold in "Republican Theory and Partisan Reality in Revolutionary Pennsylvania: Toward a New View of the Constitutionalists," in Ronald Hoffman and Peter J. Albert, eds., Sovereign States in an Age of Uncertainty (Charlottesville, 1981), 95-133. Ryerson suggests that Constitutionalists tended to be outsiders, poorer economically, and by religion either Scotch -Irish Presbyterian or German Reformed. Republicans tended to come from within the state, be wealthier, and of more tolerant backgrounds, such as Episcopalian or Quaker. The result was that Repub- licans were liberal in coalition building, while the Constitutionalists were more exclusive and had to rely on a much narrower base of rural support. See also Douglass McNeil Arnold, "Political Ideology and the 'Internal Revolution in Pennsylvania, 1776-1790" (Ph.D. diss., Princeton University, 1976); and Owen S. Ireland, "The Crux of Politics: Religion and Party in Pennsylvania, 1778-1789," WMQ 42 (1985), 453-75. 6 The others were the Constitutional Society of Virginia (1784-?) and the Political Club of Danville, Kentucky (1786-1790). See J.G. de Roulhac Hamilton, "A Society for the Preservation of Liberty," AHR 32 (1927), 550-52 (who mistakes the name of the Consti- tutional Society of Virginia); Bess Furman, "Signed, Sealed-and Forgotten! The Story of a Premier Promoter of the Constitution," Daughters of the American Revolution Magazine 71 (1937), 1004-9; and Thomas Speed, The Political Club, Danville, Kentucky, 1786-1790; Being an Account of an Early Kentucky Society, From the Original Papers Recently Found ( Louisville, 1894). Rules and Regulations of the Society for Political Enquiries (Philadelphia, 1787), 1-2. Confusion over the name of the Society for Political Inquiries among historians can be traced to two sources: the Pennsylvania Packet announced a meeting of the Society, but erroneously called it "the Society for Promoting Political Inquiries" (probably because a society for promoting agriculture did exist-see the edition of April 2, 1787); J. Thomas Scharf and Thompson Westcott's History of Philadelphia, 1607-1884 (3 vols., (Philadelphia, 1884), 1:445, has one paragraph on the Society, but calls it "The Society for Political Inquiries, for Mutual Improvement in Knowledge of Government, and for the Advancement of Political Science." Scharf and Westcott apparently lifted this name from the second paragraph

PA219 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 188 MICHAEL VINSON April

Among the original members of the Society were Benjamin Frank- lin, Thomas Paine, Francis Hopkinson, David Rittenhouse, Robert Morris, Benjamin Rush, Tench Coxe, and James Wilson.' It is sig-

on the second page of the pamphlet on Rules and Regulations. The pamphlet, of course, says that the title of the association is "The Society for Political Inquiries" (though the pamphlet title renders the name "The Society for Political Enquiries"). That is also the only name ever used in the minutes of the Society, as well as in the correspondence of the members. For an interesting summary of the Society's activities, see George W. Smith and William B. Davidson, "Report of the Committee Appointed to Examine the Minute Book of the Society for Political Inquiries; read at a meeting of the Council, March 18, 1829," Memoirs of the Pennsylvania Historical Society 2 (1830), 43-51. For an account of Thomas Paine's activity in the Society, see Moncure Daniel Conway, The Life of Thomas Paine, with a History of His Literary, Political and Religious Career in America, France, and England (2 vols., New York, 1892), 1:225-26; David Freeman Hawke, Paine (New York, 1974), 169; and Eric Foner, Tom Paine and Revolutionary America (New York, 1976), 204. Tench Coxe's activity in the Society is covered in Jacob E. Cooke, Tench Coxe and the Early Republic (Chapel Hill, 1978), 99. Benjamin Franklin's activities are covered in Carl Van Doren, Benjamin Franklin: A Biography (New York, 1938), 743-44, 769-70. Franklin himself mentioned the Society for Political Inquiries in a Feb. 17, 1789, letter. See Albert H. Smyth, ed., The Writings of Benjamin Franklin (10 vols., New York, 1905-1907), 10:1. The Society is mentioned in Albert Post, "Early Efforts to Abolish Capital Punishment in Pennsylvania," PMHB 68 (1944), 41. Johann David Schoepf visited Philadelphia in 1783, and after his return to Germany, continued to correspond with some Philadelphians. As a footnote to a book he wrote on his travels, he noted: Another society has recently been established here [Philadelphia], which concerns itself with political inquiries. Its objects will be the elucidation of the science of government and the furtherance of human happiness. This society is regulated on the norm of the European philo- sophical societies; its papers and contributions will be published annually so as to preserve many valuable contributions which would otherwise be lost in the public prints. The honorable Dr. Franklin is President of this society. See Schoepf, Travels in the Confederation, 1783-1784, trans. by Alfred J. Morrison (1911; reprint ed., New York, 1968), 78. At least two members have preserved their remembrances of the Society. See T.I. Wharton, "A Memoir of William Rawle," Memoirs of the Pennsylvania Historical Society 4 (1840), 57. Rawle remembered that "Benjamin Rush with his ready tongue and argumentive zeal . . . commonly took the lead." Charles Biddle may have had the same person in mind when he wrote "we [referring to the Society] had one gentleman in the party, who, by his writings and incessant talking, disturbed us very much." See Autobiography of Charles Biddle, Vice -President of the Supreme Executive Council of Pennsylvania, 1745-1821 (Philadelphia, 1883), 223. The other participants (those who either attended a meeting, signed the by-laws, or presented an essay) were: John Armstrong, Jr., Richard Bache, Charles Biddle, William Bingham, Robert Blackwell, John Bleakey, William Bradford, Edward Burd, Benjamin Chew, George Clymer, Nicholas Collin, Thomas Fitzsimons, George Fox, William T. Franklin, William Hamilton, Robert Hare, Henry Hill, Jared Ingersoll, William Jackson, John Jones, Adam Kuhn, Samuel Magaw, John F. Mifflin, Thomas Mifflin, Robert Mil- ligan, Jacob Morgan, Gouverneur Morris, John Nixon, Timothy Pickering, Samuel Powel,

PA220 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 189 nificant that even though most of the forty-eight members of the Society were Republicans (the Pennsylvania group that disapproved of the state constitution of 1776), at least six of the members were Constitutionalists (those who supported the 1776 constitution). This mix suggests that the Enlightenment impulse, which favored diverse opinions as well as the belief that reasonable men should be able to gather together, was strong enough to overcome temporarily the fac- tional dispute otherwise dividing the two parties during the previous decade. The members of the Society gathered to preserve, strengthen, and enhance the social and political virtues necessary to improve republican forms of government. To divide the Society along partisan lines would have been inconsistent with the anti -party attitudes of republicanism.' The Society met twice a month, usually in Franklin's dining room or library, from October to May (with a summer recess). Attendance at Society meetings was highest in the first year, when the Consti- tutional Convention set out to propose a new system of government. From February to May of 1787 the Society's attendance ranged from thirteen to twenty-three members. The following winter, 1787-1788, twelve to fifteen members attended the first few meetings, but after Pennsylvania's ratification of the Constitution, attendance declined to six to eight members for the remainder of the year. The next winter, 1788-1789, four to eight members attended, and they agreed to meet monthly beginning in November. The meetings were never resumed after May 1789.10 The members at the Society's meetings discussed far-ranging topics, including the relevance of Latin usage and study, prison reform, freedom of the press, a system of taxation, and commercial policies. An underlying theme informing members' concerns about these topics

William Rawle, Joseph Redman, Thomas Rushton, Arthur St. Clair, Edward Shippen, Edward Tilghman, Charles Vaughan, Samuel Vaughan, Jonathan Williams, and Caspar Wistar. Minutes of the Society for Political Inquiries, Feb. 9, 1787 to May 9, 1789 (Historical Society of Pennsylvania). 9 For an excellent treatment of anti -party attitudes at this time, see Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 (Berkeley, 1969). " Minutes of the Society for Political Inquiries, Feb. 9, 1787 to May 9, 1789.

PA221 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 190 MICHAEL VINSON April was the general republican concern to improve the social and economic virtues of Americans. Questions about the usefulness of Latin and Greek studies had been raised as early as 1769, when John Wilson, a teacher at the Friends' Latin School in Philadelphia, wondered about the propriety of teaching Latin to boys who were intended for employment as either mechanics or merchants." At the Society's March 28, 1788, meeting, members agreed to consider the question: "Whether the study of the Latin and Greek languages is proper in the degree in which it is now pursued?" On April 11 and 25, 1788, Benjamin Franklin, Henry Hill (merchant), Samuel Magaw (minister and vice -provost of the University of Pennsylvania), John Jones and Adam Kuhn (both doctors), Nicholas Collin (minister), and George Fox and George Clymer (merchants) gathered in Franklin's library to discuss the issue.12 Shortly after these evening discussions, Francis Hopkinson, a mem- ber of the Society who taught at the University of Pennsylvania and who may have heard about the conversations from Samuel Magaw, wrote and delivered two speeches on the Latin -Greek debate at the graduation ceremonies of the university; the presentations were later reprinted in the American Museum." Hopkinson wrote the first essay with a slight trace of wit, but he rendered the second essay in a satiric

" Jean S. Straub, "Teaching in the Friends' Latin School of Philadelphia in the Eighteenth Century," PMHB 91 (1967), 452-53. 12 Minutes of the Society for Political Inquiries, March 28, April 11 and 25, 1788. For further information on the debate over the place of classical languages, see Richard M. Gummere, "The Schools, Colleges, and the Classics in Colonial America," Proceedings of the Numismatic & Antiquarian Society of Philadelphia 32 (1928 / 1935), 178-95; Robert Middle- kauff, "A Persistent Tradition: The Classical Curriculum in Eighteenth -Century New Eng- land," WMQ 18 (1961), 54-67; and Meyer Reinhold, "Opponents of Classical Learning in America during the Revolutionary Period," Proceedings of the American Philosophical Society 112 (1968), 221-34. " The American Museum was a magazine published by Mathew Carey, an Irish immigrant who came to Philadelphia from Dublin in 1784. The Museum was published monthly, and it usually reprinted pieces, although it also printed original contributions. For more infor- mation, see Frank Luther Mott, A History of American Magazines, 1741-1850 (Cambridge, 1966), 100-3. For the essays, see Francis Hopkinson, "The Use and Advantages of What are Called Learned Languages in the Education of Youth," American Museum (hereafter, AM) 3 (June 1788), 540-41; and Hopkinson, "Answer to the Preceding Speech-written by the same gentlemen as the former-and delivered by another student," AM 3 (June 1788), 541-44.

PA222 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 191 manner, revealing his own contempt for the classical languages." Likewise, Franklin was opposed to the teaching of Latin and Greek. In a conversation with Benjamin Rush about a year after the discussion at the Society, Franklin called the classical languages the "quackery of literature" and said that although he had spent one year in Latin school as a boy, he found study of the Romance languages Italian and Spanish easier primarily because he had first learned French.15 Certainly Rush saw no need for the study of Latin and Greek. In a letter written to John Adams shortly after his visit with Franklin, Rush summarized his own recent essay, published in the American Museum.' Rush posed two rhetorical questions to Adams: Who are guilty of the greatest absurdity-the Chinese who press the feet into deformity by small shoes, or the Europeans and Americans who press the brain into obliquity by Greek and Latin? Do not men use Latin and Greek as the scuttlefish emit their ink, on purpose to conceal themselves from an intercourse with the common people? Indeed, my friend, I owe nothing to the Latin and Greek classics but the turgid and affected style of my youthful compositions." Rush's comments on concealing "an intercourse with the common people" reveal his republican aversion, shared with Hopkinson and Franklin, against elitism in the national language. But while Rush, Hopkinson, and Franklin promoted equality in the national language, they were uncertain about the liberties that could be taken with such egalitarianism, particularly with regard to the press. During the debate over ratification of the Constitution, some news- papers (e.g., Eleazer Oswald's Independent Gazetteer) began to attack

" Hopkinson, "Answer to the Preceding speech- written by the same gentleman as the former-and delivered by another student," 541. 15 Benjamin Rush, "Excerpts from the Papers of Benjamin Rush," PMHB 29 (1905), 27. 1' Benjamin Rush, "An enquiry into the utility of a knowledge of the Latin and Greek languages, as a branch of liberal education, with hints of a plan of liberal instruction, without them, accommodated to the present state of society, manners, and government in the United States. By a citizen of Philadelphia," AM 4 (June 1789), 525-35. Apparently, Rush also sent Adams a copy of this essay. 17 Benjamin Rush to John Adams, July 21, 1789, in L.H. Butterfield, ed., Letters of Benjamin Rush (2 vols., Princeton, 1951), 1:524.

PA223 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 192 MICHAEL VINSON April prominent persons in the state and country." This was an era when public attacks in newspapers were something just short of invitations to duels, but it was also a time when many people were attracted to the conception of personal freedom. So the question of what consti- tuted freedom of the press was an important one." It was in this climate that, in 1787 in the Independent Gazetteer, the authors who signed themselves as "A Centinel" characterized Benjamin Franklin as being as much a "Fool from age" as Washington was "a Fool from nature." Oswald had overstepped proper limits of gentlemanly be- havior in publishing the piece. Indeed, Tench Coxe sent a clipping of the newspaper attack to a friend, with a note that it had "astonished many people here." A spirited defense of Franklin and Washington immediately appeared in three different editions of the Pennsylvania Gazette, but the debate so impressed Franklin that he proposed it as a topic of discussion at the Society.2° Accordingly, on November 23, 1787, fifteen members of the So- ciety gathered in Franklin's library to discuss three questions:

What is the Extent of the Liberty of the Press consistent with the Public Utility? If it should have limits what are they? Is the Liberty

" Oswald published the Independent Gazetteer from 1782 to 1796. The Gazetteer began as a weekly paper, but beginning in 1786 it was published daily. Clarence S. Brigham, History and Bibliography of American Newspapers, 1690-1820 (Worcester, 1947), 919-20. 19 For information on dueling and the public honor, see Evarts B. Greene, "The Code of Honor in Colonial and Revolutionary Times, with Special Reference to New England," Publications of the Colonial Society of Massachusetts 26 (1927), 367-88; and for information on the idea of personal honor, see Robert H. Wiebe, The Opening of American Society, From the Adoption of the Constitution to the Eve of Disunion (New York, 1984), 14-15. Interestingly, Oswald was in a duel with Mathew Carey in 1786. Both had exchanged insults in newspapers and, on January 18, went across the Delaware River (to avoid the Pennsylvania law which forbade dueling) to New Jersey, where Oswald shot Carey through the thigh. Scharf and Westcott, History of Philadelphia, 1:443. For information on the idea of freedom of the press, see Leonard W. Levy, "Did the Zenger Case Really Matter? Freedom of the Press in Colonial New York" WMQ 17 (1960), 35-50; and Dwight L. Teeter, "Press Freedom and the Public Printing: Pennsylvania, 1775-1783," Journalism Quarterly 45 (1968), 445- 51. 20 Unfortunately, I do not know (but would appreciate finding out) the exact date the Independent Gazetteer carried the insult, although I do know that it was in either late September or early October 1787. The response (and defense) appeared in the Pennsylvania Gazette Oct. 10 and 31, and Nov. 7, 1787. The topic was proposed Nov. 9, 1787; see Tench Coxe to David S. Franks, Nov. 24, 1787, Tench Coxe Papers (Historical Society of Pennsylvania).

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of attacking Private Characters in the News -papers of any Utility to Society?'

A few months later, in a letter to the Pennsylvania Gazette, Franklin revealed his own thoughts on the subject: "Nothing is more likely to endanger the liberty of the press, than the abuse of that liberty, by employing it in personal accusation, detraction and calumny.1122 To support his contention, Franklin appealed to the national sense of honor. He mentioned that as he travelled abroad, he once con- fronted an editor who was known to publish derogatory things about Americans and who justified himself by saying "That he had published nothing disgraceful to us, which he had not taken from our own printed papers.""Two key republican points appear in Franklin's remarks: first, the failure of the individual to exercise self-restraint and moderation, and second, the danger the irresponsible individual posed to American virtue by damaging the national sense of honor.' Another republican concern expressed by members of the Society was the influence of public institutions on moral character. At a meeting of the Society in March 1787, Benjamin Rush addressed that concern in "An Inquiry into the Influence of Public Punishments upon Criminals and upon Society."' His essay dealt with the public works law passed in Philadelphia in 1786. This law replaced capital

2' The questions were proposed at the meeting of Nov. 9, 1787: Minutes of the Society for Political Inquiries, Nov. 9, 1787. 22 Benjamin Franklin, "To the Editors of the Pennsylvania Gazette, on the abuse of the Press," Smyth, ed., Writings of Benjamin Franklin, 9:639. 23 Smyth, ed., Writings of Benjamin Franklin, 9:640. 24 The Society promoted discussion on other topics dealing with political economy and social virtues. See, for example, the Minutes of the Society for Political Inquiries, April 20, 1787. An essay on integration may be found in the William Rawle Family Papers (Historical Society of Pennsylvania) in the three volumes, 1775-1835, entitled "William Rawle's essays on philosophical, scientific, historical, political, and social subjects." Paine's essay, "The Incorporating of Towns," discussed the disadvantages of corporations and charters to the economies of municipalities. While the original essay given at the Society has not survived, essentially the same, or at least similar, message is found in the second part of The Rights of Man in the fifth chapter. See William M. Van der Weyde, ed., The Life and Works of Thomas Paine (10 vols., New Rochelle, 1925), 7:21-25. Nicholas Collin read a paper, entitled "An essay upon the advantages resulting to a nation from the cheerful temper of its inhabitants," which was reprinted in the Memoirs of the Pennsylvania Historical Society 2 (1830), 48-49. 25 Minutes of the Society for Political Inquiries, March 9, 1787.

PA225 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 194 MICHAEL VINSON April punishment for burglary, robbery, and sodomy with a term not to exceed ten years of employment at the public thoroughfares.' The "Wheelbarrow Law," as it came to be known, provided that convicts not only had to work at repairing the streets, they also had to be dressed in a "peculiar style" and had to be constantly guarded while working in public.' Public humiliation of other persons was hard enough on Philadelphians' sensitivity. Indeed, one observer remarked that "Pardons, so destructive to every mild system of penal laws, were granted with a profusion."' One Jacob Dryer, for instance, was convicted of burglary, but rather than undergo public humiliation, he told the Council that he preferred the previous punishment of hanging. Out of sympathy for his humiliation, Dryer was pardoned and paroled by the Supreme Executive Council. Dryer violated the conditions of his pardon, however, and was sentenced to be hung, but he escaped the gallows by being pardoned a second time.' There were other disadvantages to the public punishments law. Many of the convicts were professional thieves, and pick -pocketing of passersby was common. The more malicious thieves were required to have a large iron ball chained to their legs which had to be lifted from place to place after they had finished sweeping or scraping their area. This ball could be thrown down so that it injured pedestrians, to the amusement of the convicts and the detriment of the citi- zens."Escapes and riots became more common as prisoners voiced their opposition to the wheelbarrow law. Just two days before Rush gave his paper on public punishments, the Pennsylvania Gazette re- ported that "18 criminals broke out of gaol," all of whom had been

26 Scharf and Westcott, History of Philadelphia, /:443. 27 Ibid., /:444. For more information on prison reform in Philadelphia, see Michael Meranze, "The Penitential Ideal in Late Eighteenth -Century Philadelphia," PMHB 108 (1984), 419-50. Meranze mentions the Society for Political Inquiries on p. 435 and gives a good summary of Rush's essay on pp. 435-40. 28 James Mease and Thomas Porter, Picture of Philadelphia, giving an account of its origin, increase and improvements in Arts, Sciences, and Manufactures, Commerce and Revenue. With a compendious view of its Societies, Literary, Benevolent, Patriotic and Religious. . . . (Phila- delphia, 1831), 160. 29 Scharf and Westcott, History of Philadelphia, 1:444. " Ibid.

PA226 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 195 condemned "to punishment at the wheelbarrow."' Two weeks later, the prisoners of the Walnut Street jail attempted another general escape, which resulted in an armed force being called in and the death of one prisoner.' In a letter to her father, Susanna Dillwyn, a Quaker offended by the punishments, summed up the feelings of many Philadelphians:

criminals clean the streets . . . with great iron chains around them- [at] the end of which a monstrous ball of iron is fast'ned to prevent their running away-it is a painful sight and in other respects I believe they find more disadvantages than was expected from it.33 This situation, deplorable to many Philadelphians, prompted Rush to begin his essay by noting that the purpose of punishment was both to reform the prisoner and to prevent further crimes. He argued that public punishments "tend to make bad men worse and to increase crimes."' Rush believed it was difficult to reform a convict through the wheelbarrow law because public punishment destroyed the crim- inal's dignity and removed all shame, a dangerous course, since shame "is one of the strongest outposts of virtue" and, by implication, an important deterrent to criminal acts. The removal of the deterrent not only permitted similar offenses to recur, but also encouraged revenge. Rush thought another reason that public punishments would increase crime was because future criminals could see the extent of the punishment and would be unafraid. Far better, the doctor thought, that punishments should remain unknown, since the human mind always assumes the worst." Public punishments, Rush continued, also

Pennsylvania Gazette, March 7, 1787. The Gazette was a weekly newspaper established in 1728 by Samuel Keimer, who sold the paper in 1729 to Benjamin Franklin and Hugh Meredith. Meredith retired in 1732, and Franklin took David Hall on as a partner in 1748. In 1766 the partnership was dissolved, and William Sellers joined Hall in printing the paper. Brigham, History of American Newspapers, 933-34. 32 Scharf and Westcott, History of Philadelphia, 1:444. " Susanna Dillwyn to William Dillwyn, May 1787, cited in Butterfield, ed., Letters of Benjamin Rush, 1:416, note L 34 Benjamin Rush, An Enquiry into the Effects of Public Punishments upon Criminals, and upon Society. Read in the Society for Political Inquiries, convened at the house of Benjamin Franklin, esquire, in Philadelphia, March 9th, 1787 (Philadelphia, 1787; microform ed., Worcester, n.d.), 4-S. " Ibid.

PA227 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 196 MICHAEL VINSON April damaged society. They made people insensitive and callous to suf- fering, and, Rush extrapolated, when people ignored the worst part of the human race, they no longer were able to love the whole, causing them to forget the widow, orphan, naked, and sick-as well as the prisoner.' The essay's publication as a pamphlet in April 1787 had a profound effect. The pamphlet was popular in Philadelphia (Susanna Dillwyn purchased one to send to her father), and Rush could write to John Dickinson that "It has made many converts in our city from the assistance it has derived from the miserable spectacle which is daily before our eyes."' By the following month, interest had grown enough to support another organization, and on May 8, several members of the Society for Political Inquiries joined with Rush, as well as leading religious figures of Philadelphia, to form the Philadelphia Society for Alleviating the Miseries of the Public Prisons." Later that month, Rush wrote to John Coakley Lettsom and acknowledged the influence of John Howard, a well-known advocate of prison reform in Britain, in the formation of the prison reform society. Rather modestly, Rush added that his pamphlet had aided the formation of the new society "in a small degree."" The Society for Political Inquiries was more than a gentlemen's club or an academic society. It also functioned as a public voice expressing concerns about contemporary issues. In the case of the punishment issue, an essay written out of concern for a local issue was favorably received by Society members, who encouraged its pub- lication. Rush's access to the resources and members of the Society, as well as the success of his pamphlet, led to the organization of a new society designed to alter the public punishment laws. The actions of the members of the Society for Political Inquiries showed their republican, and Enlightenment, commitment to improve the social character of society.

36 Ibid., 7. 3' Benjamin Rush to John Dickinson, April 5, 1787, Butterfield, ed., Letters of Benjamin Rush, 1:416. " See the charter of the association, "Constitution of the Philadelphia Society for Alle- viating the Miseries of the Public Prisons," AM 1 (April 1787), 454. " Benjamin Rush to John Coakley Lettsom, May 18, 1787, Butterfield, ed., Letters of Benjamin Rush, 1:417.

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Another public institution that influenced the character of a re- publican society was the method of financing government. To the members of the Society for Political Inquiries, the economic system of a republican goverment was just as important a consideration as was the nation's social character. Financing republican government became one of the major topics of discussion in Society meetings, since the foremost concern for many members was a method of taxation for the new nation. In April 1787 Franklin wrote to Abbe Morellet on this subject (in particular referring to import duties), stating that freedom of commerce was preferable where direct taxes could be obtained. But, Franklin complained, in America "they are so widely settled, often five or six miles distant from one another in the back country, that the collection of a direct tax is almost impossible." The fees of the collector would be more than the tax taken in.40 The Society decided to stimulate public debate on methods of taxation by announcing an essay contest. This practice was common; it had been used previously by both the Philadelphia Society for Promoting Agriculture and the American Philosophical Society.' On Friday, December 14, 1787, the Society for Political Inquiries re- solved to offer a gold plate worth ten guineas for the best essay that addressed the question: "What is the best System of Taxation to constitute a Revenue in a Commercial, Agricultural & Manufacturing Country?" Three Society members were instructed to prepare for publication an announcement, which was discussed at the Society's next meeting on December 28. In surprising contrast to the usually bland minutes, the secretary noted that a "long debate [over the form

ao Benjamin Franklin to Abbe Morellet, April 22, 1787, Smyth, ed., Writings of Benjamin Franklin, 9:578. See also Franklin to Alexander Small, Sept. 28, 1787, ibid., 9:615, and Franklin to M. Le Veillard, Feb. 17, 1788, ibid., 9:638. For a helpful summary of the problem of taxation for the new republic, see Thomas P. Slaughter, "The Tax Man Cometh: Ideological Opposition to Internal Taxes, 1760-1790," WMQ 41 (1984), 566-91. +1 Fifteen awards were offered during 1789 by the Philadelphia Society for Promoting Agriculture. See "Premiums proposed by the Philadelphia Society for Promoting Agriculture for the year 1789," AM 5 (Jan. 1789), 159; and also E.P. Richardson, "A Rare Gold Medal of the Philadelphia Society for Promoting Agriculture," American Art Journal 14 (July 1982), 56-61.

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of announcements] arose."' Apparently, the debate over form was deep-rooted, because the prize questions were discussed January 25, March 28, April 11, and April 25, 1788. Finally, on May 9, the Society decided to have the announcement printed "in two of the public papers, also in the magazines and the Museum."' Although the official winner apparently was never announced, some clues exist to help determine which essay was successful. By February 1789 three essays (two in German, one in English) had been sub- mitted. The two essays in German were translated and read by Nicholas Collin, who determined that they did not "meet the questions entirely." The essay in English was submitted by Peletiah Webster.' Webster's essay initially was not considered for the prize because a longer version of it had previously been published in 1783.45 This objection was overcome because the gold plate was ordered, and Webster's essay was afterward published in the American Museum." Webster's essay began by introducing the basic principles of gov- ernment and revenue finance. He argued that the underlying principle

42 Minutes of the Society for Political Inquiries, Dec. 14 and 28, 1787; Jan. 25, March 28, April 11 and 25, and May 9, 1788. 43 The Society also offered a premium for the question, "Whether the imposition of government is beneficial to Agriculture, Commerce, and Manufactures?" AM 3 (May 1788), 446-47. " Peletiah Webster to Benjamin Franklin, Dec. 18, 1788, Benjamin Franklin Papers (American Philosophical Society); and Minutes of the Society for Political Inquiries, Feb. 13, 1789. The essay contest drew at least one European's interest. Grouber de Groubentall wrote to Thomas Jefferson asking for information on the "soil, commerce, agricultural produce, manufactures, [and] exports and imports" so that he could submit a treatise to the Sociit; institutes a Philadelphie pour Pexamen d'objets Politiques. See Julian P. Boyd, ed., The Papers of Thomas Jefferson (22 vols. to date, Princeton, 1950-), 14:50. 45 Referring to Webster's essay: "The latter had been published before the Society's advertisement had issued, and for that cause its consideration was postponed." Smith and Davidson, "Report of the Committee Appointed to Examine the Minute Book of the Society for Political Inquiries," 50. 46 Peletiah Webster, "Essay on Free Trade and Finance," AM 6 (July 1789), 67-69; (Aug. 1789), 133-36; (Sept. 1789), 190-93; and (Dec. 1789), 451-54. The essay was originally published in pamphlet form as A Sixth Essay on Free Trade and Finance, Particularly shewing What Supplies of Public Revenue may be drawn from Merchandize, Without injuring our Trade or burdening our People (Philadelphia, 1783). How much of Webster's moral vision was embraced by members of the Society for Political Inquiries is not known (although they did award it their gold plate), but Benjamin Franklin favored Webster's methods. In a letter to M. Le Veillard (Feb. 17, 1788) he wrote (referring to an impost): "what is paid in the price of merchandise is less felt by the consumer, and less the cause of complaint." Smyth, ed., Writings of Benjamin Franklin, 9:638.

PA230 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 199 of taxation was that "the consumption of anything, on which the burden of tax is laid, will always be thereby lessened." Since taxation reduced consumption, Webster believed that those items should be taxed heaviest which were "least necessary" to the community.' The problem was in determining what was "necessary." Webster defined as "necessary" those items which the United States could export. Therefore, agriculture, fishing, and manufactures would be exempt, as would trade, which would be the "servant" of all.48 What then should be taxed? Webster recommended those items which injured the prosperity of the community or which weakened "their morals and economy." This combination of moral vision and economic practices provided a dual benefit. A tax on "harmful" luxuries would raise a revenue while at the same time reducing their use. Among the items Webster thought deserved import tariffs were: "all imported wines; silks of all sorts, cambricks, lawns, and laces, &c. &c. superfine cloths and velvets; jewels of all kinds, &c." Sugar, tea, and coffee were other items which could be effectively taxed at rates from 10 to 100 percent; to non -luxury items a small duty of 5 percent could be added.49 Those who favored "freedom of commerce" resisted import duties; consequently, Webster gave a barrage of reasons why the tariff was superior to other forms of taxation. Import duties were always paid in cash, thus increasing the supply of circulating money, while at the same time they helped to decrease the use of pernicious goods. Because individuals only paid the tax in proportion to their purchases, the tariff operated "in a way of general equality.'"° A tariff also helped to preserve freedom of choice. Unlike a direct property tax with an arbitrary tax collector who could demand payment at any time, con- sumers would know before they purchased a bottle of wine or a silk gown that there would be a tariff to pay. In Webster's train of thought the customer had the choice of whether or not he wanted to pay the extra cost!'

47 Webster, "Essay," 68. " Ibid. " Ibid., 69. " Ibid., 134-35.

51 Ibid., 190.

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Webster then considered the practical effects of the tariff on the nation. The most important effect was the gradual diminution of "useless" consumption. Webster believed that farmers were especially susceptible to buying one luxury which necessitated the use of another so that the farmer soon "finds the proceeds of the year vanished into trifles." Even more disturbing, merchants and tradesmen who had sold goods to the farmer on credit were unable to collect payment." In a cash -deprived economy, a tariff -based tax promised other benefits. Laborers and tradesmen could follow their daily occupations without having to lose work time by having to "go in quest of money to satisfy a collector of taxes." Local manufactures also would increase in response to the tariff, thereby benefiting the whole economy. Webster was not even concerned about the additional price increase, since this would be "but a light inconvenience to the people."'" The alternative to a tariff was to restore poll and estate taxes which, Webster insisted, discouraged industry, oppressed the laborer, and ruined agriculture. The import duty was the least painful to farmers, as compared to parting with a number of animals to satisfy a direct tax, and if implemented fairly and uniformly, the duty would not hurt merchants either.' Webster's proposal combined moral vision and political economy in a manner that preserved equality (since the tax would be propor- tional to how much one spent) and liberty (since the consumer presumably had the choice of whether or not to purchase the tariffed item). This form of republicanism relied on economic regulations to improve the moral character of Americans by reducing their con- sumption of luxuries. At the same time, it provided for the necessary financing of the national government." Another national economic concern which the Society for Political Inquiries addressed was the commercial role that would be played

52 Ibid., 191. " Ibid., 451. 54 Ibid., 452. " Gordon Wood notes that "like Puritanism, of which it was a more relaxed, secularized version, republicanism was essentially anti -capitalistic, a final attempt to come to terms with the emergent individualistic society" that showed itself in America: Wood, Creation of the American Republic, 418. Webster had a strong New England upbringing, and his economic thought reflects many puritanical strains of republicanism. See Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, 1985), 73-77.

PA232 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 201 by the national government under the new Constitution. This topic was of particular concern to the many Society members who were merchants. In a series of letters written to his brother in Europe, George Fox, a Philadelphia merchant and secretary of the Society, revealed many of his hopes and concerns for the success of the new Constitution's commercial regulations. "Our domestic news is not very agreeable," Fox wrote. Citing the effects of the War for Inde- pendence on the local economy, he complained that "The War has in some measure destroyed those habits of industry and honesty which the old settlers" had possessed.' Fox in a later letter expressed his hope for change: "Much-very much of our future happiness as citizens of the United States depends on the Convention now sitting as well as the wisdom of the several states to adopt these alterations in the Confederation which may promise future advantages."' Others expressed the need for commercial regulation in articles for the American Museum. William Barton (not a member of the Society) wrote "On the Propriety of Investing Congress with Power to Regulate the Trade of the United States." The author argued that since sov- ereignty over trade was given implicitly to the Confederation by the states, it should be granted outright so that Congress may promote "a beneficial system of foreign trade." Tench Coxe, a merchant who would later help Alexander Hamilton to draft a report on the manufactures of the United States, read an essay before the Society at this time on "The Principles on Which a Commercial System for the United States of America Should be Founded."" Coxe began by noting that "now is a moment of crisis" and listed the economic and political problems of the Confederation. Precious metals and hard currency were absorbed "by a wanton

$6 George Fox to Samuel M. Fox, Sept. 1786 and May 1, 1787, George Fox Letter Book (American Philosophical Society). George Fox to Samuel M. Fox, June 9, 1787, ibid. 58 William Barton, "On the Propriety of Investing Congress with Power to Regulate the

Trade of the United States," AM 1 (Jan. 1787), 16. 59 Tench Coxe, An Enquiry into the Principles on which a Commercial System for the United States of America should be Founded; to which are added Some Political Observations connected with the subject. . . . (Philadelphia, 1787). Jacob Cooke treats this essay admirably in Tench Coxe and the Early Republic, 99-102. See also Minutes of the Society for Political Inquiries, May 11, 1787.

PA233 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 202 MICHAEL VINSON April consumption of imported luxuries," and as a result, paper money was used. An ineffectual federal government under the Articles of Con- federation had left foreign commerce and trade extremely weak. Even shipping between American ports faced foreign competition." To combat these problems, Coxe reviewed the state of agriculture and then suggested improvements for commerce and manufactures. Coxe's essay pointed out many benefits in agriculture. It was pro- ductive because of the abundant fertile soil in the United States, but also because few or no duties were required to strengthen it and it provided employment for a large labor force (nine out of ten people were employed in agriculture). Agriculture was "the spring of our commerce and the parent of manufactures," he argued. While Coxe may have been a little too laudatory in his exuberant praise of agri- culture, he was aware of the role that farm exports played in eigh- teenth -century America's balance of trade.' After safely remarking that nothing should be done to agriculture which would "interrupt this happy progress of our affairs," Coxe argued that positive action was necessary to encourage manufactures and commerce. First, Coxe advocated a domestic policy of reciprocity. Americans should return in kind the trade regulations that they had been forced to work under for the previous decade. For example, Coxe believed that navigation between American ports should be restricted to domestic ships, allowing foreign ships only to finish their sales, not carry cargo, between ports. This, after all, was what Eu- ropeans did.62 Coxe next pointed out the need for trade restrictions against certain imports. The fisheries of Nova Scotia, for example, interfered with New England's trade in sea products. Regional spe- cializaton also would promote economic growth in the new nation. He wrote: "the produce of the Southern states should be exchanged for such manufactures as can be made by the Northern."' The benefits of domestic manufacture were not forgotten. It seemed to Coxe that domestic manufactures had a natural advantage in America over imports. After the costs of insurance, commissions, duties, han-

60 Coxe, An Enquiry, 5-6. 61 Ibid., 7-9. 62 Ibid., 12. 63 Ibid., 20.

PA234 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 203 dling, storage, and shipping were taken into account, Coxe figured that American -made products had a 25 percent bonus right from the start." Finally, in the area of foreign policy Coxe advocated a strict neutrality policy toward Europe. European wars would benefit "farm- ers, merchants and manufacturers. . . . Our ships would carry for them . . . and our lands and manufactories would furnish the sup- plies of their fleets."' Coxe's essay on a commercial system was immediately popular. One week after presenting the essay to the Society (on May 11), Coxe wrote to Franklin that he had received encouragement from his friends to publish the essay. Published just as the Constitutional Convention began to meet, the essay was designed to influence the Convention. Coxe's intentions were all too clear. Six of Pennsylvania's delegates to the Convention had heard him read his essay, and the pamphlet was dedicated to "The Honorable Members of the Con- vention, assembled at Philadelphia for Federal Purposes."" The pop- ularity of Coxe's essay did not subside. One month later the American Museum reprinted the entire essay and dedicated it and the rest of the issue to the Convention delegates.' While Coxe's essay apparently had little impact on the Convention, the popularity of his ideas extended beyond his government proposals. Two months after the American Museum reprint appeared, Coxe ad- dressed the opening meeting of the Pennsylvania Society for the Encouragement of Manufactures and the Useful Arts, which was organized to raise funds for manufacturing investment." The Society for the Encouragement of Manufactures was first proposed July 26, 1787, at a meeting held for those interested in the scheme. Coxe,

64 Ibid., 16-20. 65 Ibid., 33. 66 Tench Coxe to Benjamin Franklin, May 18, 1787, Benjamin Franklin Papers; Coxe, An Enquiry, 2. Thomas Jefferson received a copy of Coxe's pamphlet from John B. Cutting (then in London), who wrote to Jefferson (who was in Paris): "if a good opportunity occurs soon I will transmit to you a pamphlet or two lately written in various parts of the Union." See E. Millicent Sowerby, ed., Catalogue of the Library of Thomas Jefferson (5 vols., Wash- ington, 1953), 3:470-71. 67 Tench Coxe, "An Enquiry into the principles on which a commercial system for the

United States of America should be founded," AM 1 (June 1787), 496-514. 68 Tench Coxe, "An Address to an assembly of friends of American manufactures," AM 2 (Sept. 1787), 248-55.

PA235 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 204 MICHAEL VINSON April with several others, was assigned to draw up a constitution for the new organization. Preliminary officers were appointed on August 12, and by September 12, a regular election of officers and managers was held. Not surprisingly, much of the leadership came from mem- bers of the Society for Political Inquiries: the president (Thomas Mifflin), two of the vice-presidents (David Rittenhouse and Samuel Powel), one of the secretaries (George Fox), the treasurer ( John Nixon), and five of the managers (William Bingham, Tench Coxe, Robert Hare, William Rawle, and Benjamin Rush).69 The Society for Political Inquiries drew members from both political parties in Philadelphia to discuss issues of importance to the republican experiment. If those involved were not the "men of all classes, sects, and political beliefs who showed a signal willingness to forget private animosities" (in the words of Carl and Jessica Bridenbaugh, who were writing on associations and their members prior to 1776), neither were they partisans who identified so strongly with a sense of party that a clear division prevented them from coming together." The Society for Political Inquiries illustrates these aspirations and limi- tations in the desire to cross party lines and the inability to discuss the basic theory and structure of government. Republicans and Con- stitutionalists may have joined the Society to show that they could gather as reasonable, educated gentlemen dedicated to a republican pursuit to improve the nation. But the closest that the Society could come to talking about principles of government was in areas that were not yet partisanly divisive, such as political economy (when Paine talked about the economic influence of charters on towns, or in the discussions on commerce or direct taxes). The Society eschewed debate or discussion over such politically volatile topics as whether a uni- cameral or a bicameral legislature was better suited for the new nation. Thus Paine, who favored a unicameral legislature, "never opened his

69 For the activities of the Pennsylvania Society for the Encouragement of Manufactures and the Useful Arts, see Cooke, Tench Coxe and the Early &public, 102-8; and Neil Longley York, Mechanical Metamorphosis: Technological Change in Revolutionary America (Westport, 1985), 164. For an excellent discussion of how captitalistic and communitarian motives were combined in early American republicanism, see Ralph Lerner, "Commerce and Char- acter: The Anglo-American as a New Model Man," WMQ 36 (1979), 3-26. 7° Carl and Jessica Bridenbaugh, Rebels and Gentlemen: Philadelphia in the Age of Franklin (New York, 1962 ed.), 262; Main, Political Parties, 203.

PA236 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1989 LIMITS OF REPUBLICAN DISCOURSE 205 mouth" when he attended the meetings, no doubt in deference to the other members' feelings on bicameralism and the Society's tacit understanding to confine discussion to issues that would not divide the membership.' That understanding was lost when the Pennsyl- vania debate over ratification strained the attendance of the Consti- tutionalists. After the U.S. Constitution was ratified, even Republicans lost interest in Society affairs. Only a few members continued to attend, including Charles Biddle, the one remaining Constitutionalist. The Society for Political Inquiries was most successful when it dealt with issues that had little immediate partisan significance, such as prison reform and encouragement of manufactures. That it failed to deal with the "science of government" is not really surprising, given the contradictory demands the members of the Society put on themselves. Originally they had organized a society to search for new principles of government that could be applied to the new nation. Thus, they overlooked partisan boundaries in their memberships. But political principles were partisan, not universal, and any attempt to discuss them was potentially dividing. Political necessity restrained topics of discourse among the republican -minded members of the Society for Political Inquiries. This suggests the need for examining levels of discourse, whether republican, political, civic, or economic, and their interrelationship in the early republic.' The abandonment of the search for theories of government was unavoidable if the Society were to survive beyond the first meeting. The decision might not have been explicitly made, but in effect the members avoided arguments over principles of government in favor of maintaining the appearance of a community of republican citi- zens-an appearance which they gave up after the struggle over ratification."

Southern Methodist University MICHAEL VINSON

71 Conway, Life of Thomas Paine, 1:225-26. For Paine's opposition to a bicameral legislature, see Foner, Tom Paine and Reoolutionary America, 201-2. 72 For an examination of levels of discourse, especially with regard to federalism and republicanism, see the suggestive article by Peter S. Onuf, "Reflections on the Founding: Constitutional Historiography in Bicentennial Perspective" (forthcoming in the April 1989 William and Mary Quarterly). 73 Interestingly, in April 1985, a group of civic-minded citizens joined with Roland Baumann, then of the Pennsylvania Historical and Museum Commission, in reviving the Society for Political Inquiries.

PA237 This content downloaded from 206.253.207.235 on Wed, 16 Jan 2019 21:31:31 UTC All use subject to https://about.jstor.org/terms 1700] The Statutes at Large of Pennsylvania. 77 laden or unladen, ten pence; over Neshaminy creek, for every passenger, two pence; and for man and horse, five pence: over Schuylkill, for oxen, bullocks, cows, heifers, horses and mares per head, two pence; for sheep and hogs, one halfpenny; for a single passenger, two pence; and for all passengers above one, one penny a piece; for man and horse, laden or unladen, three pence: over Brandywine and Christine [Christiana], for every passenger, two pence; and for man and horse, laden or unladen, five pence; and for cattle, as over Schuylkill.

Passed November 27, 1700; allowed to become a law by lapse of time, in accordance with the proprietary charter, having been considered by the Queen in Council, February 7, 1705-6, and not acted upon. See Appendix I, Section II, and the Acts of Assembly, passed June 7, 1712, Chapters 190 and 191.

CHAPTER LXI.

AN ACT FOR THE TRIAL OF NEGROES. Whereas some difficulties have arisen within this province and territories about the manner of trial and punishment of ne- groes committing murder, manslaughter, buggery, burglary, rapes, attempts of rapes and other high and heinous enormities and capital offenses, for remedy whereof and for the speedy trial and condign punishment of such negro or negroes offend- ing as aforesaid: [Section I.] Be it enacted by the Proprietary and Governor, by and with the advice and consent of the freemen of this Province and Territories in General Assembly met, and by the authority of the same, That from and after the publication of this present ---. act, it shall and may be lawful for two justices of the peace of r*.J f, N this province or territories, who shall be particularly commis- r*.J Cr) sionated by the proprietary and governor for that service within the respective counties thereof, and six of the most sub- o .1.1 Cr) stantial freeholders of the neighborhood, to hear, examine, try duo and determine all such offenses committed by any negro or no - CV

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA23 8 78 The Statutes at Large of Pennsylvania. [1700 groes within this government, which said freeholders shall be by warrant, under the hands and seals of the respective justices commissionated as aforesaid, directed to the next constable, summoned to appear at such time and place as the said justices shall therein appoint; which freeholders the said justices shall solemnly attest well and truly to give their assistance and judg- ment upon the trial of such negro or negroes, who shall hold a court for the hearing, trying, judging, determining and convict- ing of such negro or negroes as shall be before them charged or accused of committing any murder, manslaughter, buggery, burglary, rapes, attempts of rapes or any other high or hein- ous offenses committed, acted or done in any the respective counties within this province or territories as aforesaid. [Section II.] And be it further enacted by the authority afore- said, That upon the sitting of such court by the said justices and freeholders as aforesaid, it shall and may be lawful for the said justices and freeholders to examine, try, hear, judge, determine, convict, acquit or condemn according to evidence and full proof, any negro or negroes for any the crimes or offenses aforesaid, or any other high or capital offense; and upon due proof and con- viction to pronounce such judgment or sentence in the premises as is agreeable to law and the nature of the offense, or other- wise to acquit, free and discharge such negro or negroes in case (1.1 the evidence shall not be sufficient for a conviction therein. [Section III.] And be it further enacted by the authority aforesaid, That where such negro or negroes shall be convict, and judgment or sentence shall be pronounced by the respec- tive justices and freeholders as aforesaid, and a warrant by them signed and sealed, to be directed to the High Sheriff of the county where the fact was committed, for the execution of such negro or negroes, the same shall be duly executed or caused to be duly executed by the said sheriff, on pain of being disabled to act any longer in that post or office; and if any of the said justices or freeholders neglect or delay to do their duty herein, they shall be liable to be fined by the governor and council, in any sum not exceeding five pounds, to be levied by distress and sale of the goods and chattels of such justices or freeholders so refusing as aforesaid.

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA239 1700] The Stabiles at Large of Pennsylvania. 79 [Section IV.] And be it further enacted by the authority aforesaid, That if any negro or negroes within this government shall commit a rape or ravishment upon any white woman or maid, or shall commit murder, buggery or burglary, they shall be tried as aforesaid, and shall be punished by death; and if any negro shall attempt a rape or ravishment on any white woman or maid, they shall be tried in manner aforesaid, and shall be punished by castration; and if any negro shall be convicted of robbing, stealing or fraudulently taking or carrying away any goods living or dead, the master or owner of such negro shall make satisfaction to the party wronged, and pay all costs, to be levied by distress and sale of the said master's or owner's goods and chattels, and the negro to be whipped as the said justices and freeholders shall adjudge and appoint. [Section V.] And be it further enacted by the authority afore- said, That if any negro shall presume to carry any guns, swords, pistols, fowling -pieces, clubs or other arms or weapons whatsoever, without his master's special license for the same, and be convicted thereof before a magistrate, he shall be whip- ped with twenty-one lashes on his bare back. [Section VI.] And be it further enacted by the authority aforesaid (and for the preventing of negroes meeting and com- panying together upon First days or any other day or time in great companies or numbers), That if any person or persons give notice thereof, and to whom they respectively belong, to any justice of the peace within this government, the same being above the number of four in company and upon no lawful busi- ness of their masters or owners, such negro or negroes so offend- ing shall be publicly whipped at the discretion of one justice of the peace, not exceeding thirty-nine lashes.

Passed November 27, 1700; repealed by the Queen In Council, Febru- ary 7, 1705-6. See Appendix I, Section II, and the Act of Assembly, passed January 12, 1705-6, Chapter 143.

OriginaI from Digitized by Googk UNIVERSITY OF MICHIC-AN PA240 1789] The Statutes at Large of Pennsylvania. 243 of the said corporation heretofore made or to be made touch- ing the premises. [Section V.] (Section VI, P. L.) Provided always and be it enacted by the authority aforesaid, That no by-laWs nor ordi- nances of the said corporation hereafter made shall be bind- ing upon the members or officers thereof unless the same shall be proposed at one regular meeting of the said corporation and enacted and received at another after the intervention of at least thirty days and that no sale or alienation or lease for above three years of any part of the real estate of the said corporation shall be valid unless the terms and nature of such sale or lease be proposed at a previous meeting of the said corporation. Passed March 26, 1789. Recorded L. B. No. 3, p. 490.

CHAPTER MCDIX.

AN ACT TO AMEND AN ACT ENTITLED "AN ACT FOR AMENDING THE PENAL LAWS OF THIS STATE."1 (Section I, P. L.) In order to remedy several abuses arising from certain defects in the act entitled "An act for amending the penal laws of this state," and to render the provisions there- in contained more beneficial and effectual: [Section I.] (Section II, P. L.) Be it enacted and it is hereby enacted by the Representatives of the Freemen of the Com- monwealth of Pennsylvania in General Assembly met and by the authority of the same, That the county commissioners of the several counties of this state except the county of Philadel- phia shall and they are hereby enjoined and required as soon as conveniently may be after the passing of this act to cause to bd set apart and prepared in their respective county gaols and in the yards thereof suitable and sufficient places and apartments for the accommodation of such persons as are or may be con -

'Passed September 15, 1786, Chapter 1241.

PA241 244 The Statutes at Large of Pennsylvania. [1789 fined therein on account of debt or [upon] civil process and also as witnesses in cases of criminal prosecutions, which places and apartments shall be exclusively appropriated to the reception and accommodation of the foregoing description of prisoners and no felon charged or convicted shall be permitted to have access to the same or any communication with any person of the description aforesaid. [Section IL] (Section III, P. L.) And be it further enacted by the authority aforesaid, That all persons who shall be con- fined in the gaol of the city and county of Philadelphia upon civil process or as witnesses in criminal prosecutions or charged with or convicted of misdemeanors only, shall upon [due] notice from the persons hereinafter mentioned to the sheriff of the said city and county that the workhouse in the said city is altered and prepared for their reception in the manner hereinafter directed, be removed to the said work- house, and that so much thereof as shall be necessary together with the east yard to the same belonging shall be set apart and appropriated to the reception and safekeeping of such persons only, which shall be and remain under the care and custody of the sheriff of the said city and county, and shall and is hereby declared to be the gaol of the city and county of Phila- delphia. [Section III] (Section IV, P. L.) And be it further enacted by the authority aforesaid, That the mayor, aldermen and citi- zens of Philadelphia together with the commissioners for the county of Philadelphia shall as soon as conveniently may be cause such alterations to be made in the said workhouse and yard as shall be necessary for the safe and comfortable keep- ing of such prisoners and when the same shall be completed give notice thereof to the said sheriff for the purpose afore- said. [Section IV.] (Section V, P. L.) And be it further enacted by the authority aforesaid, That the residence of the said work house with the west yard thereto belonging shall be reserved for the uses to which it is at present applied, and if the pres- ent building shall be found upon experience to be too small for the purpose of safely keeping, accommodating and employ-

PA242 1789] The Statutes at Large of Pennsylvania. 245 ing the number of persons who are or shall be confined there - [in] it shall and may be lawful for [the] said mayor, alder- men, citizens and commissioners, to cause such additional buildings to be erected contiguous thereto as they shall find necessary and expedient for the purposes aforesaid. [Section V.] (Section VI, P. L.) And be it further enacted by the authority aforesaid, That the mayor and any three [of the] aldermen of the said city and any four justices of the peace of the county of Philadelphia shall be and they are hereby authorized and required to fix and regulate from time to time the fees of the keeper of the said workhouse and for securing the payment thereof from the vagrants and other disorderly persons who shall be committed to the same, the said keeper shall have power notwithstanding any rule or or- der to the contrary to detain any such person in confinement until payment or satisfaction thereof shall be made. [Section VI.] (Section VII, P. L.) And be it further enacted by the authority aforesaid, That the said mayor, aldermen, cit- izens and commissioners shall as soon as conveniently may be cause to be prepared, separated and set apart such parts of the present gaol of the city and county of Philadelphia as may be necessary for the reception and safe keeping of all persons charged with. or convicted of felonies or other crimes to which the provisions hereinafter contained do not extend, and that the residue of the said gaol shall be reserved for the reception, safe keeping and employment of all felons sentenced to hard labor and confinement, and that the said mayor, aldermen; cit- izens and commissioners shall cause the rooms [and] apart- ments thereof and such parts of the yard as shall be so re- served from the last mentioned purposes to be divided from the rest, and cells, sheds and other suitable buildings to be con- structed for the purpose of separating, confining and keeping employed at hard labor all felons of the last mentioned de- scription and that as well such apartments, cells and sheds as the residue of the said gaol where necessary shall be prop- erly walled up and secured to prevent all communication among the same felons and with the persons abroad and that the [same] gaol from and after the passing of this act shall

PA243 246 The Statutes at Large of Pennsylvania. [1789 be called and styled the common prison of the city and county of Philadelphia. [Section VII.] (Section VIII, P. L.) And be it further en- acted by the authority aforesaid, That all felons convicted in any county in this state of any felony or felonies for which he, she or they shall be sentenced to hard labor for the space of twelve months or upwards may at the discretion of the jus- tices of the court in which such felon shall be convicted with- in three months after such sentence shall have been given, be removed at the expense of the said county under safe and [se- cure] conduct to the said prison and be therein confined, fed, clothed and put to hard labor in the manner by the act en- titled "An act for amending the penal laws of this state,' and by this act directed for the remaining space of time for which by such sentence they shall be liable to imprisonment. [Section VIII.] (Section IX, P. L.) And be it further en- acted by the authority aforesaid, That it shall and may be law- ful for the said mayor and aldermen of the said city in the mayor's court for the said city and for the justices of the peace of the several counties in their general [courts of] quar- ter sessions of the peace and they are hereby enjoined and re- quired to appoint annually or oftener if necessary six suitable and discreet persons within the said city and the respective counties as inspectors of the said prison and the several gaols and workhouses within the said city and the respective coun- ties, whose powers and duties shall be as follows: First. To provide a proper quantity of suitable raw mater- ials and to see that the same is duly distributed by the prison keeper or his deputies among the felons sentenced to hard labor as aforesaid. Secondly. To receive and dispose of the produce of their labor and apply the same in the manner hereinafter directed. Thirdly. To examine into all breaches and neglects of duty on the part of the prison keepers and their deputies and of all keepers of gaols and workhouses and report in writing the special instances thereof to the said mayor and aldermen and to the said justices at their courts aforesaid quarterly if oc- casion be. lAnte.

PA244 1:1891 The Statutes at Large of Pennsylvania. 247 Fourthly. To inquire into and report to the mayor, alder- men or justices of the peace such repairs, alterations or addi- tions to the buildings provided for the purposes aforesaid as may be necessary and expedient. [Section IX.] (Section X, P. L.) And be it further enacted by the authority aforesaid, That it shall and may be lawful for the said mayor and aldermen annually to appoint a suit- able and proper person to be keeper of the said common prison in the city of Philadelphia who shall however be liable to be removed by the said mayor and aldermen when occa- sion may require, in which case another such person shall be appointed in the manner aforesaid, who, besides the care and custody of the prisoners, shall superintend the felons employed at hard labor; that it shall be the duty of the said keeper to prevent all communication between the men and woman fel- ons and to separate the men felons from each other as much as the construction of the buildings and the nature of their employment will admit of; to admit no persons whatever ex- cept officers and ministers of justice or counsellors or attor- neys at law employed by the prisoners, ministers of the gospel or persons producing a written license from one of the said in- spectors to enter within the walls where such felons shall be confined. To suffer no spirituous liquors to be conveyed to the said prisoners unless in cases of sickness and with the consent of one of the said inspectors in writing first obtained. To punish the obstinate and refractory and to reward those who shall show signs of reformation by lightening or increasing their tasks and by increasing or lessening their food, as occa- sion may require. To prevent profligate or idle conversation and demeanor and to preserve the utmost possible cleanliness in the persons and apartments of the prisoners. [Section X.] (Section XI, P. L.) And be it further enacted by the authority aforesaid, That such keeper shall have power with the approbation of the said mayor and aldermen to ap- point a suitable number of deputies and assistants for whose faithful execution of their offices he shall be accountable and he shall also be punishable at the discretion of the court hay-

PA245 248 The Statutes at Large of Pennsylvania. [1789 ing cognizance thereof for all escapes wilfully or negligently assistants so much per annum as shall be allowed and agreed assistants, and neither he, his deputies or assistants shall ask, demand or receive any fee, emolument or reward of any kind except the salaries hereafter mentioned. [Section XI] (Section XII. P. L.) And be it further enacted by the authority aforesaid, That the said keeper of the said prison shall receive as a full compensation for his services in- cluding the expense of hiring and retaining his deputies and assistants so much per annum as shall be allowed and agreed on by the said major, aldermen, citizens and commissioners, which shall be paid to him quarterly by orders to be drawn in his favor on the treasurer of the county of Philadelphia by the mayor of the said city for the time being and he shall moreover receive from the said inspectors of the prison a com- mission'or allowance of ten per centum on the moneys arising from the labors of the said prisoners. [Section XII.] (Section XIII, P. L.) And be it further en- acted by the authority aforesaid, That before such prison keeper, his deputies or assistants shall exercise any part of the said office he shall give bond with two sufficient sureties to the said mayor, aldermen and citizens in the sum of five hundred pounds upon condition that he, his deputies and assistants, will well and faithfully perform the trust and duty in them re- posed, according to the form and effect of the several acts of assembly of this state thereto relating, which bond, the due execution thereof being proved [before] and certified by any one of the aldermen of the said city, shall be recorded in the office of the recorder of deeds for the city and county of Phil- adelphia and copies thereof exemplified by the said recorder of deedsy shall be good evidence in all courts of law [in any suit brought] against such prison keeper or his sureties. [Section XIII.] (Section XIV, P. L.) And be it further en- acted by the authority aforesaid, That if any felon sentenced to hard labor and confinement shall escape, he shall on convic- tion thereof suffer such additional confinement at hard labor agreeably to the directions of this and of the said recited act

PA246 1789] The Statutes at Large of Pennsylvania. 249 and shall also suffer such corporal punishment as the court in their discretion shall adjudge and direct. And if any such felon or felons shall after his or their escape be guilty of any offense for which on conviction he she or they would have been sentenced to death under the law as it stood before the passing the act entitled "An act for amending the penal laws of this state," he, she or they shall suffer death accordingly as if no such act had been passed. [Section XIV.] (Section XV, P. L.) And be it further en- acted by the authority aforesaid, That if any felon or felons who may have served or shall hereafter serve out the term or time for which he, she or they was or were or shall be sen- tenced agreeably to the terms of the act entitled "An act for amending the penal laws of this state,' or of this act, or hath or have been or shall hereafter be pardoned for the offenses or crimes of which he, she or they hath or have been or shall hereafter be convicted agreeably to the said act or of this act, provided the offense or offenses for which he, she or they was, or were or shall be convicted was or were by the former laws of the late province or of this commonwealth declared capital and is, are or shall be convicted of a second offence which was by the laws of the late province or of this, common wealth made capital, he, she or they being duly convicted of such second offense shall suffer death on such conviction with- out benefit of clergy. [Section XV.] (Section XVI, P. L.) And be it further en acted by the authority aforesaid, That it shall and may be lawful for the commissioners, for the county of Philadelphia with the assent and concurrence of the mayor, recorder and 'any three aldermen of the city of Philadelphia. and any three of the justices of the peace for the county of Philadelphia, and they are hereby required to assess and levy in the manner di- rected by the acts of assembly for raising county rates and lev- ies so much money as they shall judge necessary for the pur- Unto. 2Ante.

PA247 250 The 'Statutes at Large of Pennsylvania. [1789 poses of altering, accomodating and enlarging the said [gaol] prison and workhouse in manner aforesaid and also so much per annum as shall be necessary for the payment of the salary of the said prison keeper and for providing the materials, tools and implements for the labor of the said felons. [Section XVI.] (Section XVII, P. L.) And be it further en- acted by the authority aforesaid, That the charges of cloth- ing, feeding and maintaining the said felons sentenced to hard labor as aforesaid, of providing the necessary materials, tools and implements for labor [and the profits of such labor] shall be equally and annually apportioned and divided by the said inspectors of the said common prison among the said city and the several counties in proportion to the number of criminals from each of them respectively who shall be so confined at hard labor in the said common prison, in which settlement and distribution the city and county of Philadelphia shall be al- lowed the sum of one hundred pounds annually as a compensa- tion for the additional expenses arising from the provisions of this act. Provided always, That it shall and may be lawful for the commissioners of any such county to appeal from such settlement and distribution to the supreme executive council who shall upon examination and due notice to the parties, re- vise, alter or confirm the same as shall be just and reasonable. And provided also, That nothing herein contained shall alter, lessen or defeat the estate and interest of the city and count of Philadelphia in the said common prison [or] lot of ground thereunto belonging and their appurtenances. [Section XV.] (Section XVIII, P. L.) And be it further en- acted by the authority aforesaid, That if the expenses attend- ing the necessary alterations of the said [common prison] and employment of the said felons shall be found to exceed the profits arising from their labor it shall and may be lawful for the supreme executive council and they are hereby required upon the application of a majority of the inspectors of the said prison of the said city and county to draw orders upon the treasurer of the respective counties for such sums of money to be paid to the commissioners of the county of Philadelphia or their orders as upon and equal rate and [apportion] ment of

PA248 1189] The Statutes at Large of Pennsylvania. 251 such expenses according to the principles aforesaid such coun- ties may be severally liable to. [Section XVIII.] (Section XIX, P. L.) And be it further en acted by the authority aforesaid, That if any keeper of the said common prison of the city and county of Philadelphia or any of his deputies or assistants shall suffer any spirituous liquors, except as is before excepted, to be introduced into the places so reserved for the employment of felons at hard labor or shall willingly suffer any communication between the men and women felons sa confined or shall ask, demand or receive of or from any person whatsoever by color of his office or under any pretence whatever any sum or sums of money or other fee, gratuity or reward other than the salaries and allowances hereinbefore mentioned, he or they on conviction thereof shall be liable to a fine of ten pounds to be applied to the purchase of materials, tools and implements for the labor and employ- ment of the said felons in the manner by this act directed for the support and maintenance of such felons. Passed March 27, 1789. Recorded L. B. No. 3, p. 500. The Act in the text was repealed by the Act of Assembly passed April 5, 1790, Chapter 1516.

CHAPTER MCDX.

AN ACT FOR THE MORE EFFECTUAL COLLECTION OF THE POOR TAX IN THE CITY OF PHILADELPHIA, THE DISTRICT OF SOUTHWARK AND THE TOWNSHIPS OF MOYAMENSING AND THE NORTHERN LIB- ERTIES AND TO PROVIDE IN A MORE CONVENIENT AND SALUTARY MANNER FOR THE CONFINEMENT OF DISORDERLY PERSONS, FOUND AND APPREHENDED IN THE SAID CITY, DISTRICT AND TOWNSHIPS. (Section I, P. L.) Whereas by the eventual operation of an act entitled "An act to amend an act entitled 'An act for the better employment of the poor of the city of Philadelphia, the district of Southwark, the townships of Moyamensing, Pas- sayunk and the Northern Liberties,' and to revive and perpetu-

PA249 1790] The Statutes at Large of Pennsylvania 511

CHAPTER MDXVI.

AN ACT TO REFORM THE PENAL LAWS OF THE STATE. (Section I, P. L.) Whereas by the thirty-eighth section of the second chapter of the constitution of this state it is declared, "That the penal laws as heretofore used should be reformed by the legislature as soon as may be and punishments made in some cases less sanguinary and in general more proportionate to the crimes;" and by the thirty-ninth section "That to deter more effectually from the commission of crimes by continued visible punishment of long duration and to make sanguinary punishments less necessary houses ought to be provided for punishing by hard labor those who shall be convicted of crimes not capital wherein the criminal shall be employed for the benefit of the public or for reparation of injuries done to priVate persons." And whereas the laws heretofore made for the purpose of carrying the said provisions of the constitution into effect have in some degree failed of success from the ex- posure of the offenders employed at hard labor to public view and from the communication with each other not being suffi- ciently restrained within the places of confinement, and it is hoped that the addition of unremitted solitude to laborious emplo: iaent as far as it can be effected will contribute OA Mlle]] to reform as to deter: [Section I.] (Section II, P. L.) Be it therefore enacted and it is hereby enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania in General Assembly met and by the authority of the same, That the pains and penalties hereina fter mentioned shall be inflicted upon the several of- fenders who shall from and after the passing of this act com- mit and be legally convicted of any of the offences hereinafter enumerated and specified, in Iieu of the pains and penalties which by law have been heretofore inflicted; that is to say, every person convicted of robbery, burglary, sodomy or bug- gery or as accessory thereto before the fact shall forfeit to the

PA250 512 The Statutes at Large of Pennsylvania. [1790 commonwealth all and singular the lands and tenements, goods and chattels whereof he or she was seized or possessed at the time the crime was committed and at any time afterwards until conviction and be sentenced to undergo a servitude of any term or time at the discretion of the court passing the sentence not exceeding ten years in the public gaol or house of correction of the county or city in which the offence shall have been com- mitted and be kept at such labor and fed and clothed in such manner as is herein after directed. [Section II.] Provided always and be it further enacted by the authority aforesaid, That no person accused of [any of] the aforesaid crimes shall be admitted to bail but by the judges of the supreme court or some or one of them nor shall lie or she be tried but in the supreme court or in a court of oyer and terminer or general jail delivery held in and for the county wherein the offence shall have been committed and that per- emptory challenges shall be allowed in all such cases wherein they have been heretofore allowed by law but no attainder hereafter shall work corruption of blood in any case nor extend to the disinherison or prejudice of any person or persons other than the offender. [Section III.] (Section IV, P. L.) And be it further enacted by the authority aforesaid, That every person convicted of horse -stealing or as accessory thereto before the fact shall restore the horse, mare or gelding stolen to the owner or owners thereof or shall pay to him, her or them the full value thereof and also pay the like value to the commonwealth, and more- over undergo a servitude for any term not exceeding seven years in the discretion of the court before which the conviction shall be, and shall be confined, kept to hard labor, fed and clothed in manner here- inafter mentioned. Every person convicted of simple larceny to the value of twenty shillings and upwards or as accessory thereto before the fact shall restore the goods or chattels so stolen to the right owner or owners thereof or shall pay to him, her or them the full value thereof or of so much thereof as shall not be restored, and moreover shall forfeit and pay to the commonwealth the like value of the goods and chattels

PA2 5 1 1790] The Statutes at Large of Pennsylvania. 513 stolen and also undergo a servitude for any term of years not exceeding three at the discretion of the court before which the conviction shall be, and shall be confined, kept to hard labor, fed and clothed in manner hereinafter directed. And whereas by the ninth section of the first chapter of the constitution it is declared, "That in all prosecutions for criminal offences a man has a right to be heard by himself and his counsel to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor and a speedy public trial by an impartial jury of the county, without the unanimous consent of which jury he can- not be found guilty." Since which declaration. it is not pro- per that persons accused of small or petty larcenies should be tried and convicted before two magistrates or justices of the peace without the intervention of a jury. ['Section IV.] (Section V, P. L.) Be it therefore enacted by the authority aforesaid, That the act of assembly entitled "An act for the trial and punishment of larceny under five shil- lings"' be and the same is hereby repealed and [that] if any per- son or persons shall hereafter feloniously steal, take and carry a way any goods or chattels under the value of twenty shillings, the same order and course of trial shall be had and observe41 as for other simple larcenies and he, she or they being therec" legally convicted shall be deemed guilty of petty larceny and shall restore the goods and chattels so stolen or pay the full value thereof to the owner or owners thereof and also forfeit and pay the like value to the commonwealth and be further sentenced to undergo a servitude for a term not exceeding one year in the discretion of the court before which such conviction shall be, and be confined, kept to hard labor, clothed and fed: in manner as herein after directed. And every person con- victed of bigamy or of being an accessory after the fact in any felony or of receiving stolen goods knowing them to have been stolen or of any other offence not capital for which by the laws in force before the act entitled "An act to amend the penal

I Passed February 24, 1720, Chapter 243. 33-X111

PA252 514 The Statutes at Large of PenuRglrania. [1790

laws of this state" 1 burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for life is or may be in- flicted, shall instead of such parts of the punishment be fined and sentenced to undergo in the like manner and be confined, kept to hard labor fed and clothed as is hereinafter directed for any term not exceeding two years which the court before whom such conviction shall be may and shall in their discretion think adapted to the nature and heinousness of the offence. [Section V.] (Section V, P. L.) And be it further enacted by the authority aforesaid, That robbery or larceny of obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates granted by or under the authority of this common- wealth or of all or any of the United States of America shall be punished in the same manner as robbery or larceny of any goods or chattels. And whereas by the eighth section of the act of assembly entitled "An act for the advancement of jus- tice and more certain administration thereof' it is enacted that if any woman shall endeavor privately to conceal the death of her child which by being born alive should by the law be deemed a bastard so that it may not come to light whether it was born alive or not and be convicted thereof shall suffer death as in case of murder "except such mother can make proof by one witness at the least that the child whose death was by her so intended to be concealed was born dead" whereby thf bare concealment of the death is almost conclusive evidence of the child's being murdered by the mother or by her procure- ment. [Section VI.] (Section VI, P. L.) Be it therefore declared and enacted by the authority aforesaid, That from and after the publication of this act the constrained presumption that the child whose death is concealed was therefore murdered by the mother shall not be sufficient evidence to convict the party indicted without probable presumptive proof is given that the child was born alive.

1 Passed September 15, 1786, Chapter 1241. 2 Passed May 81, 1718, Chapter 286.

PA253 1790] The Statutes at Large of Pennsylvania. 515

[Section VII.] (Section VII, P. L.) And be it further en- acted by the authority aforesaid, That every other felony or misdemeanor, or offence whatsoever not specially provided for by this act may and shall be punished as heretofore. [Section VII.] (Section VIII, P. L.) Be it enacted by the au- thority aforesaid, That the commissioners for the county of Philadelphia with the approbation of the mayor and two of the aldermen of the city of Philadelphia and two of the justices of the court of the quarter sessions for the county of Philadel- phia shall as soon as conveniently may be cause a suitable num- ber of cells to be constructed in the yard of the gaol of the said county each of which cells shall be six feet in width, eight feet in length and nine feet in height and shall be constructed with brick or stone upon such plan as will best prevent danger from fire and the said cells shall be separated from the com- mon yard by walls of such height as without unnecessary ex- clusion of air and light will prevent all external communica- tion for the purpose of confining therein the more hardened and attrocious offenders who by virtue of the act entitled "An act for amending the penal laws of this state"' have been sen- tenced to hard labor for a term of years, or who shall be sen- tenced thereto by virtue of this act. [Section IX.] (Section IX, P. L.) Be it enacted by the au- thority aforesaid, That for the purpose of defraying a propor- tionable part of the expense of erecting such cells and walls the president and supreme executive council shall be and they are hereby authorized to draw orders on the state treasurer for the sum of five hundred pounds to be paid out of the funds especially appropriated for claims and improvements when the same shall be sufficiently productive and for defraying the residue of the expense it shall be lawful for the commissioners of the said county or a majority of them to assess, levy and collect within the said county so much money as they with the concurrence and approbation of the said mayor, aldermen and justices shall judge necessary, Provided, The same does not exceed the sum of one thousand pounds. [Section X.] (Section X, P. L.) Be it enacted by the author- ity aforesaid, That the said cells shall be and are hereby de-

PA254 516 The Statutes at Large of Pennsylvania. [1790 dared to be part of the gaol of the city and county of Phila- delphia and the residue of the said gaol shall be appropriated to the purposes of confining as well such male convicts sen- tenced to hard labor as cannot be accommodated in the said cells as female convicts sentenced in like manner, persons con- victed of capital crimes, vagrants and disorderly persons com- mitted as such and persons charged with misdemeanors only, all which persons are hereby required to be kept separate and apart from each other, as much as the convenience of the build- ing will admit and to be subject to the visitation and superin- tendence of the inspectors hereinafter appointed. [Section XI.] (Section XI, P. L.) Be it further enacted by the authority aforesaid, That it shall be lawful for the mayor or any alderman of the city of Philadelphia and any justice of the peace of the said county to commit any vagrant or idle and disorderly person (being thereof legally convicted before him as by law is directed) to the said gaol to be kept at hard labor for any term not exceeding one month any law of this state to the contrary notwithstanding. [Section XII.] (Section XII, P. L). Be it enacted by the au- thority aforesaid, That in order to prevent the introduction of contagious disorders every person who shall be ordered to hard labor in said gaol shall be separately lodged, washed and cleaned and shall continue in such separate lodging until it shall be certified by some physician that he or she is fit to be received among the other prisoners and if such person be a convict the clothes in which he or she shall then be clothed shall either be burnt or at the discretion of two of the said in- spectors be baked, fumigated and carefully laid by until the expiration of the term for which such offender shall be sen- tenced to hard labor to be then returned to him or her. [Section XIII.] (Section XIII, P. L.) Be it enacted by the authority aforesaid, That all such convicts shall at the public expense of such county during the term of their confinement be clothed in habits of coarse materials uniform in color and make and distinguishing them from the good citizens of this commonwealth, and the males shall have their heads and beards close shaven at least once a week and all such offenders

PA255 1790] .The Statutes at Large of Pennsylvania. 517 shall during the said term be sustained upon bread, Indian meal or other inferior food, at the discretion of said in- spectors and shall be allowed one meal of coarse meat in each week and shall be kept as far as may be consistent with their sex, age, health and ability to labor of the hardest and most servile kind in which the work is least liable to be spoiled by ignorance, neglect or obstinacy and where the materials are not easily embezzled or destroyed, and if the work to be performed is of such a nature as may require previous instruction, proper persons for that purpose to whom a suitable allowance shall be made shall be provided by order of any two of the inspectors hereafter named, during which labor the said offenders shall be kept separate and apart from each other if the nature of their several employments will admit thereof and where the nature of such employment requires two or more to work to- gether the keeper of the said gaol or one of his deputies shall if possible be constantly present. [Section XIV.] (Section XIV, P. L.) Be it enacted by the authority aforesaid, That such offenders unless prevented by ill health shall be employed in work every day in the year ex- cept Sundays and the hours of work each day shall be as many as the season of the year with an interval of half an hour for breakfast and an hour for dinner will permit, but not exceed- ing eight hours in the months of November, December and January, nine hours, in the months of February and October and ten hours in the rest of the year and when such hours of work are passed the working tools, implements and materials or such of them as will admit of daily removal shall be re- moved to places proper for their safe custody until the hour of bibor shall return. [Section XV.] (Section XV, P. L.) Be it enacted by the au- thority aforesaid, That the keeper of the said gaol shall from time to time with the approbation of any two of the inspectors hereafter mentioned provide a sufficient quantity of stock and materials, working tools and implements for such offenders for the expense of which the said inspectors or any two of them shall be and they are hereby authorized to draw orders to be countersigned by the commissioners of the county on the

PA256 518 The Statutes at Large of Pennsylvania. [1790

treasurer of the county if need shall be specifying in such or- ders the quantity and nature of the materials, tools or imple- ments wanted, which orders the said treasurer is hereby re- quired to discharge out of the county stock, for which mater- ials, tools and implements when received the said keeper shall be accountable, and the said keeper shall with the approbation of any two of the said inspectors have power to make contracts with any person whatever for the clothing, diet and all other necessaries for the maintenance and support of such convicts and for the implements and materials of any kind of manufac- ture, trade or labor in which such convicts shall be employed for the sale of such goods, wares and merchandise as shall be there wrought and manufactured and the said keeper shall cause all accounts concerning the maintenance of such convicts and other prisoners to be entered regularly in a book or books to be kept for that purpose and shall also keep separate ac- counts of the stock and materials so wrought, manufactured, sold and disposed of and the moneys for which the same shall be sold and when sold and to whom in books to be provided for those purposes, all which books and accounts shall be at all times open for the examination of the said inspectors and shall be regularly laid before them at their quarterly or other meetings as hereinafter is directed for their approbation and allowance. [Section XVI.] (Section. XVI, P. L.) Be it enacted by the authority aforesaid, That if the said inspectors at their quar- terly or other meetings shall suspect any fraudulent or im- proper charges or any omissions in any such accounts they may examine upon oath or affirmation the said keeper or any of his deputies, servants or assistants or any person of whom any necessaries, stock, materials or other things have been pur- chased for the use of the said gaol or any persons to whom any stock or materials wrought or manufactured therein have been sold or any of the offenders confined in such gaol or any other person or persons concerning any ofthe articles contained in such accounts or any omission thereout and in case any fraud shall appear in such accounts the particulars thereof shall be

PA257 1790] The Statutes at Large of Pennsylvania. 519 reported by the said inspectors in writing to the mayor of the said city for the purposes hereinafter mentioned. [Section XVII.] (Section XVIII, P. L.) Be it enacted by the authority aforesaid, That in order to encourage industry as an evidence of reformation separate accounts shall be opened in the said books for all convicts sentenced to hard labor for six months and upward in which such convicts shall be charged with the expenses of clothing and subsistence and such proportionable part of the expenses of the raw materials upon which they shall be employed as the inspectors at their quar- terly or other meetings shall think just and shall be credited with the sum or sums from time to time received by reason of their labor and if the same shall be found to exceed the said expenses one half of said excess shall be laid out in decent rai- ment for such convicts at their discharge or otherwise applied to their use and benefit as the said inspectors shall upon such occasions direct and if such offender at the end or other deter- mination of his term of confinement shall labor under any acute or dangerous distemper he shall not be discharged unless at his own request until he can be safely discharged. [Section XVIII.] (Section XVIII, P. L.) Be it enacted by the authority aforesaid, That no person whatever except the keeper, his deputies, servants or assistants, the said inspectors, officers and ministers of justice, counsellors or attorneys at law employed by a prisoner, ministers of the gospel or persons pro- ducing a written license signed by two of the said inspectors shall be permitted to enter within the walls where such offend- ers shall be confined and that the doors of all the lodging rooms and cells in the said gaol shall be locked and all lights therein extinguished at the hour of nine and one or more watchmen shall patrol the said gaol at least twice in every hour from that time until the return of the time of labor in the morning of the next day. [Section XIX.] (Section XIX, P. L.) Be it enacted by the authority aforesaid, That the walls of the cells and apartments in the said gaol shall be whitewashed with lime and water at least twice in every year and the floors of the said cells and apartments shall be washed once every week or oftener if the

PA258 520 The Statutes at Large of Pennsylvania. [1790 said inspectors shall so direct by one or more of the said pris- oners in rotation who at the discretion of the said keeper shall have an extra allowance of diet for so doing and the said pris- oners shall be allowed to walk and air themselves for such stated time as their health may require and the said keeper shall permit and if proper employment can be found such pris- oners may also be permitted with the approbation of two of the said inspectors to work in the yard provided such airing and working in the yard be in the presence or within the view of the said keeper or his deputies or assistants. [Section XX.] (Section XX, P. L.) Be it enacted by the au- thority aforesaid, That one or more of the apartments in the second story of the said gaol and at the extreme end of the west wing shall be fitted up as an infirmary and in case any such offender being sick shall upon examination of a physi- cian be found to require it he or she shall be removed to the infirmary and his or her name shall be entered in a book to be kept for that purpose and when such physician shall report to the said keeper that such offender is in a proper condition to quit the infirmary and return to his or her employment such report shall be entered by the said keeper in a book to be kept for that purpose and the said keeper shall order him or her back to his or her former labor so far as the same shall be consistent with his or her state of health and the said mayor, aldermen and justices shall from time to time appoint a physician to attend at said gaol. [Section XXI.] (Section XXI, P. L.) Be it (quieted by the authority aforesaid, That the keeper of the said gaol shall have power to punish all such prisoners guilty of assaults within the said gaol when no dangerous wound or bruise is given, pro- fane cursing and swearing, indecent behavior, idleness or neg ligence in work or wilful mismanagement of it Or of disobedi- ence to the orders and regulations hereinafter directed to be made by confining such offenders in the dark cells or dungeons of the said gaol and by keeping them upon bread and water only for any term not exceeding two days and if any such pris- oner shall be guilty of any offense within the said gaol which the said keeper is not hereby authorized to punish or for which

PA259 1790] The Statutes at Large of Pennsylvania. 521 he shall think the said punishment is not sufficient by reason of the enormity of the offense he shall report the same to two of the said inspectors who if upon proper inquiry they shall think fit shall certify the nature and circumstances of such offense with the name of the offender to the mayor of the said city and the mayor shall thereupon order such offenses to be punished by moderate whipping or repeated whippings not ex- ceeding thirteen lashes each or by close confinement in the said dark cells or dungeons with bread and water only for suste- nance for any time not exceeding six days or by all the said punishments. [Section XXII.] (Section XXII, P. L.) Be it enacted by the: authority aforesaid, That it shall be lawful for the mayor and two aldermen of the said city and two of the justices of the peace of the said county on the first day of May annually to appoint a suitable person to be keeper of the said gaol who shall however be liable to be removed by the mayor, aldermen and justices aforesaid when occasion may require in which case another shall from time to time be appointed in like man- ner who shall receive as full compensation for his services and in lieu of all fees and gratuities by reason or under color of the said office so much per annum as the said mayor, alder- men and justices at the time of such appointment shall direct to be paid in quarterly payments by orders drawn on the treas- urer of the said county by said mayor and also five per centum on the sales of all articles manufactured by the said criminals and such keeper shall have power with the approbation of the mayor, aldermen and justices aforesaid, to appoint a suitable number of deputies and assistants at such reasonable allow- ances as the mayor, aldermen and justices aforesaid shall think just which allowances shall be paid quarterly in like manner and before any such gaoler shall exercise any part of the said office he shall give bond to the treasurer of the county with two sufficient sureties to be approved by the said mayor in the sum of five hundred pounds upon condition that he, his depu- ties and assistants shall well and faithfully perform the trusts and duties in them reposed, which bond the due execution thereof being proved before and certified by any of the alder-

PA260 522 The Statutes at Large of Pennsylvania. [1790

men of the said city shall be recorded in the office of the re- corder of deeds for the county of Philadelphia and copies thereof exemplified by the said recorder of deeds shall be legal evidence in all courts of law in any suit against such gaoler or his sureties. [Section XXIII.] (Section XXIII, P. L.) Be it enacted by the authority aforesaid, That it shall be lawful for the said mayor, aldermen and justices aforesaid on the first Monday in May next to appoint twelve inspectors, six of whom shall be in office until the first Monday in November next and six until the first Monday in May following, and so from time to time six inspectors shall be appointed in manner afore- said on the first Mondays in May and November annually, and if any person so appointed not having a reasonable excuse to be approved of by the said mayor, aldermen and justices shall refuse to serve in the said office he shall forfeit and pay the sum of ten pounds to be recovered by action of debt as debts of like value are recoverable by the laws of this commonwealth, the one half thereof to the use of the person suing, the other half to be paid to the treasurer of the said county to be ap plied to the purposes hereinbefore mentioned. [Section XXIV.] (Section XXIV, P. L.) Be it enacted by the authority aforesaid, That the said inspectors, seven of whom shall be a quorum, shall meet once in three months, in an apart- ment to be provided for that purpose in the said gaol and may be especially convened by the two acting inspectors wlien oc- casion may require, and they shall at their first meeting ap- point two of their members to be acting inspectors who shall continue such for such time as shall be directed by the said inspectors or a majority of them when met together. And the acting inspectors shall attend at the said gaol at least once in each week and shall examine into and inspect the management of the said gaol and the conduct of the said keeper .and his deputies so far as respects the said. offenders employed at hard labor and the directions of this act and shall do and perform the several matters and things hereinbefore directed by them to be performed. [Section XXV.] (Section XXV, P. 14.) Be it further enacted

PA261 1790] The Statutes at Large of Pennsylvania. 523 by the authority aforesaid, That the board of inspectors at their quarterly or other meeting shall make such further or- ders and regulations for the purpose of carrying this act into execution as shall be, approved of by the mayor and recorder of the said city and such orders and regulations shall be hung up in at least six of the most conspicuous places in the said gaol and if the said keepor or any of his deputies or assist- ants shall obstruct or resist the said inspectors or any of them in the exercise of the powers and duties vested in them by this act such person shall forfeit and pay the sum of twenty pounds to be recovered as aforesaid and shall moreover be liable to be removed in manner aforesaid from his respective office or em- ployment in the said gaol. [Section XXVI.] (Section XXVI, P. L.) Be it further en- acted by the authority aforesaid, That the present house of correction in the city of Philadelphia shall be reserved for the exclusive reception and confinement of debtors and persons committed to secure their appearance as witnesses in criminal prosecutions and not charged with any misdemeanor or higher offense, which witnesses if bound in recognizances for their appearance in favor of the prosecution shall be allowed the sum of six pence per diem to be paid out of the county stock, and the commissioners of the said county are hereby authorized to make such alterations in the same not exceeding the sum of sixty pounds as shall be necessary to accommodate all such prisoners and to distinguish the said house of correction by a proper title henceforward it shall be called and known by the name of "The Debtors' Apartment." [Section XXVII.] (Section XXVII, P. L.) Be it further en- acted by the authority aforesaid, That the keepers of the said gaol and of the said house of correction respectively shall forthwith exchange the several prisoners in their respective custody conformable to the true intent and meaning of this act and shall be and are hereby indemnified for all such pris- oners as shall be safely delivered into. proper custody pursuant to the directions of this act: And whereas it may not at present be practicable to intro- duce all the above mentioned regulations into each of the

PA262 524 The Statutes at Large of Pennsglrania. [1790 counties of this state although it is neecssary that an uniform- ity of punishment should as much as possible prevail in all: [Section XXVIII.] (Section XXVIII, P. L.) Be it enacted by the authority aforesaid, That the malefactors sentenced to hard labor as aforesaid in the several counties of this state other than the county of Philadelphia shall be employed in the several gaols and work houses in the respective counties in such hard and servile labor and fed and clothed in such manner as is hereinbefore directed. And the sheriff of the proper county to whom the said malefactors shall be commit- ted in execution of their sentence shall from time to time with the approbation of the justices of the court of quarter sessions of the proper county in open court appoint so many keepers of the said malefactors as shall be necessary, whose wages shall be ascertained and allowed by the said court and paid by the treasurer of the county out of the moneys in his hands raised for the use of the said county by a warrant drawn by the said sheriff and at least one of the commissioners of the proper county and that the duty of the said keepers shall be to superintend and direct their labors, manage and attend to their clothing, diet and lodging and take care that they be safely kept and the better to effect this purpose they shall have authority to confine in close durance apart from all so- ciety all those who shall refuse to labor, be idle or guilty of any trespass and during such confinement to withhold from them all sustenance except bread and water, and also to put iron yokes around their necks chains upon their leg or legs or otherwise restrain in irons such as shall be incorrigible or irreclaimable without such severity. [Section XXIX.] (Section XXIX, P. L.) Be it enacted by the authority aforesaid, That the court of quarter sessions of any such county shall have power either ex officio or upon in- formation against any such keeper for partiality or cruelty to call before them such keeper together with the material wit- nesses and inquire into his conduct and if it shall appear that he bath been guilty of gross partiality or cruelty it shall and may be lawful for the said court to suspend or remove him, and any of the judges of the supreme court when upon the cir-

PA263 1.190.1 The Statutes at Large of Pennsylvania. 525 cuit hi. such county either on their own motion or on complaint made by any other may take original cognizance of the mis- behavior of any keeper and remove him from office if they see cause and in case of suspension or removal of all or any of the said keepers either by the justices of the quarter sessions or the judges of the supreme court the sheriff of the proper county with the approbation of the justices of the quarter sessions of the same county shall and he is hereby authorized and directed to appoint another keeper or keepers in the room of such as shall have been so suspended or removed. [Section XXX.] (Section XXX, P. L.) Be it further enacted by the authority aforesaid, That the keepers of the gaols and workhouses or houses of correction in such counties shall once every three months or oftener if required furnish the commis- sioners of their respective counties with a complete calendar or list of all persons committed to their respective custody under sentence of such servitude, together with the names of their crimes, the term of their servitude, in what court condemned, the ages and the description of the persons of such as shall ap- pear to be too old and infirm or otherwise incapable to undergo hard labor out of the gaols or work houses, and the said com- missioners shall at the charge of the proper county provide the clothing and the food hereinbefore directed for them as also such articles and materials of labor and manufacture as shall be most suitable for the employment of all those who are capable of labor or manufacture and deliver the same to the said gaoler or workhouse keeper, taking a receipt therefor; and that the gaoler or workhouse keeper shall render an account quarterly or oftener if required to the commissioners of the work done by the said malefactors and dispose of the same in such manner as the commissioners shall direct and the said commissioners are hereby authorized from time to time to draw orders or give their warrants on the treasurer of the proper county for the advance of such sums as they shall think reasonable and necessary for carrying this act into execution and all expenses and charges incurred or to be incurred by virtue of this act shall be levied and raised as other county charges are and be accounted for in like manner excepting the said sum of five

PA2 64 526 The Statutes at Large of Pennsylvania. [1790 hundred pounds directed by this act to be paid out of the treas- ury of the state towards erecting the said cells in the yard of the gaol of the county of Philadelphia. [Section XXXI.] (Section XXXI, P. L.) Be it enacted by the authority aforesaid, That the said keepers of any at the gaols, and houses of correction within this commonwealth, their deputies and assistants in case any of the said offenders shall escape from confinement without the knowledge or consent of the said keepers, deputies or assistants shall forfeit and pay the sum of ten pounds to be recovered and applied in manner afore- said. Provided, That nothing in this act contained shall be deemed or taken to extend to escapes voluntarily suffered by any such keepers of the said gaols or workhouses. [Section XXXII.] (Section XXXII, P. L.) Be it enacted by the authority aforesaid, That if any such offender sentenced to hard labor shall escape, he ar she shall on conviction thereof suffer such additional confinement at hard labor agreeably to the directions of this act and shall also suffer such additional corporal punishment not extending to life or limb as the court in which such offender shall have been convicted shall adjudge and direct. And if any such offender shall after his or her es- cape be guilty of any offense for which he or she would have been sentenced to death by the laws in force before the passing of the act entitled "An act for amending the penal laws of this states he or she shall suffer death as if the said act or this act had not been made. [Section XXXIII.] (Section XXXIII, P. L.) Be it enacted by the authority aforesaid, That any such offenders who have been or shall be pardoned for the offenses or crimes of which he or she hath been or shall be convicted in pursuance of the said act or of this act, provided such offense was by any law in force before the passing of the said act made capital and who shall be convicted of a second offense of the like nature shall suffer death on such conviction without the benefit of clergy and any constable who shall take up and convey to gaol any convict who shall escape from his confinement shall be allowed mileage at the same rate as constables are commonly allowed to be paid by the treasurer of the proper county.

PA265 1190] The Statutes at Large of Pennsylvania. 527

[Section XXXIV.] (Section XXXIV, P. L.) Be it enacted by the authority aforesaid, That any felon convicted in any .county in this state other than the county of Philadelphia of any felony or felonies for which he or she shall be sentenced to hard labor for the space of twelve months or upwards may at the discretion of the court in which such felon shall be con- victed within three months after such conviction be removed at the expense of the said county under safe and secure conduct to the gaol in the said county of Philadelphia and therein be -confined, fed, clothed and employed at hard labor as is herein - before directed for the remaining part of the time for which by such sentence he or she shall be liable to imprisonment, and the commissioners of the said county of Philadelphia upon the application of the said inspectors shall have authority from time to time to draw orders upon the treasurer of the county from which such felon shall have been so removed for the ex- penses of feeding and clothing such felon, if the labor of such felon shall not be sufficient to pay the same, which orders the treasurer of such county shall accept and pay. [Section XXXV.] (Section XXXV, P. L.) Be it enacted by the authority aforesaid, That if any gaoler or other person whatever shall introduce into or give away, barter or sell with- in any gaol or house of correction in the said city or any of the counties of this state any spirituous or fermented liquors ex- ,cept ing only such as the gaoler or keeper of such gaol or house of correction shall make use of in his own family or such as may be required for any prisoner in a state of ill health and for such purpose prescribed by an attending physician and de- livered into the hands of such physician or other person ap- pointed to receive them, such person shall forfeit and pay the sum of Ave pounds to be recovered as debts of like value may be recovered by the laws of this state, one moiety thereof to the use of the person suing, the other moiety to be paid to the said inspectors for the purposes in this act contained. [Section XXXVI.] (Section XXXVI, P. L.) Be it enacted 'by the authority aforesaid, That the act entitled "An act for -amending the penal laws of this state" 1 and the act entitled

I See Ante.

PA266 528 The Statutes at Large of Pennsylvania. [1790 "An act to amend an act entitled 'An act for amending the penal laws of this state' "1 shall be and they are hereby re- pealed. [Section XXXVIL] (Section XXXVII, P. L.) Be it enacted by the authority aforesaid, That this act shall be in force for the term of five years and from thence to the end of the next session of the general assembly and no longer. [Section XXXVIII.] (Section XXXVIII, P. L.) And be it further enacted by the authority aforesaid, That the force and operation of the act hereinbefore mentioned entitled "An act for amending the penal laws of this state"' shall notwithstand- ing the said act is herein repealed remain valid and effectual as to all persons convicted and sentenced to confinement, ser- vitude and hard labor conformably to the true intent and meaning of the said act and of this act. Passed April 5, 1790. Recorded L. B. No. 4, p. 105. See the Acts of Assembly passed September 23, 1791, Chapter 1513; April 4, 1792, Chapter 1636; April 22, 1794, Chapter 1777; April 18, 1795, Chapter 1861; March 20, 1797, Chapter 1929; April 4, 1799, Chapter 2051. Sections 1, 2, 3, 4, 6, 6, 7, 32 and 33 repealed by the Act of Assembly passed March 31, 1860. Chapter 376. P. L. of 1860, p. 452.

CHAPTER MDX VI I.

AN ACT FOR THE PAYMENT OF THE CLAIM OF TURNBULL, MARMIE AND COMPANY. (Section I, P. L.) 'Whereas it appears to this house that Messrs. Turnbull, Marmie and Company late contractors for a part of the continental army had on the first day of June one thousand seven hundred and eighty-seven a warrant drawn by the board of treasury of the United States on Thomas Smith, Esquire, continental loan officer, for the sum of three thousand 1 Passed March 27, 1789, Chapter 1409. 2 Ante.

PA267 Crosstabs of race of defendant and then race of victim, by death penalty outcomes

. tabulate dp_filed0 FD_white, column row

Key

frequency

row percentage

column percentage

FDwhite

dp_filed0 0 1 Total

0 429 138 567

75.66 24.34 100.00

64.41 64.49 64.43

1 237 76 313

75.72 24.28 100.00

35.59 35.51 35.57

Total 666 214 880

75.68 24.32 100.00

100.00 100.00 100.00

PA268 . tab dp_filed0 FD_black, column row

Key

frequency

row percentage

column percentage

FD_black

dp_filed0 0 1 Total

0 173 394 567

30.51 69.49 100.00

59.86 66.67 64.43

1 116 197 313

37.06 62.94 100.00

40.14 33.33 35.57

Total 289 591 880

32.84 67.16 100.00

100.00 100.00 100.00

PA269 . tab dp_filed0 FD_hispanic, column row

Key

frequency row percentage column percentage

FD_hispanic

dp_filed0 0 1 Total

0 540 27 567

95.24 4.76 100.00

66.01 43.55 64.43

1 278 35 313

88.82 11.18 100.00

33.99 56.45 35.57

Total 818 62 880

92.95 7.05 100.00

100.00 100.00 100.00

PA270 . tab dp_filed0 anywhite_v_dum, column row

Key

frequency

row percentage

column percentage

anywhite_v_dum dp_filed0 0 1 Total

0 401 166 567

70.72 29.28 100.00

67.06 58.87 64.43

1 197 116 313

62.94 37.06 100.00

32.94 41.13 35.57

Total 598 282 880

67.95 32.05 100.00

100.00 100.00 100.00

PA271 . tab dp_filed0 anyblack_v_dum, column row

Key

frequency

row percentage

column percentage

anyblack_v_dum dp_filed0 0 1 Total

0 207 360 567

36.51 63.49 100.00

56.87 69.77 64.43

1 157 156 313

50.16 49.84 100.00

43.13 30.23 35.57

Total 364 516 880

41.36 58.64 100.00

100.00 100.00 100.00

PA272 . tab dp_filed0 anyhisp_v_dum, column row

Key

frequency

row percentage

column percentage

anyhisp_v_dum

dp_filed0 0 1 Total

0 536 31 567

94.53 5.47 100.00

66.92 39.24 64.43

1 265 48 313

84.66 15.34 100.00

33.08 60.76 35.57

Total 801 79 880

91.02 8.98 100.00

100.00 100.00 100.00

PA273 . tabulate dp_retracted0 FD_white, column row

Key

frequency

row percentage

colon percentage

dp_retract FDwhite

ed0 0 1 Total

0 547 187 734

74.52 25.48 100.00

82.13 87.38 83.41

1 119 27 146

81.51 18.49 100.00

17.87 12.62 16.59

Total 666 214 880

75.68 24.32 100.00

100.00 100.00 100.00

PA274 . tab dp_retracted0 FD_black, column row

Key

frequency

row percentage

column percentage

dp_retract FD_black

ed0 0 1 Total

0 240 494 734

32.70 67.30 100.00

83.04 83.59 83.41

1 49 97 146

33.56 66.44 100.00

16.96 16.41 16.59

Total 289 591 880

32.84 67.16 100.00

100.00 100.00 100.00

PA275 . tab dp_retracted0 FD_hispanic, column row

Key

frequency

row percentage

colon percentage

dp_retract FD_hispanic

ed0 0 1 Total

0 691 43 734

94.14 5.86 100.00

84.47 69.35 83.41

1 127 19 146

86.99 13.01 100.00

15.53 30.65 16.59

Total 818 62 880

92.95 7.05 100.00

100.00 100.00 100.00

PA276 . tab dp_retractedO anywhite_v_dum, column row

Key

frequency

row percentage

column percentage

dp_retract anywhite_v_dum

ed0 0 1 Total

0 497 237 734

67.71 32.29 100.00

83.11 84.04 83.41

1 101 45 146

69.18 30.82 100.00

16.89 15.96 16.59

Total 598 282 880

67.95 32.05 100.00

100.00 100.00 100.00

PA277 . tab dp_retracted0 anyblack_v_dum, column row

Key

frequency

row percentage

column percentage

dp_retract anyblack_v_dum

ed0 0 1 Total

0 300 434 734

40.87 59.13 100.00

82.42 84.11 83.41

1 64 82 146

43.84 56.16 100.00

17.58 15.89 16.59

Total 364 516 880

41.36 58.64 100.00

100.00 100.00 100.00

PA278 . tab dp_retracted0 anyhisp_v_dum, column row

Key

frequency

row percentage

column percentage

dp_retract anyhisp_v_dum

ed0 0 1 Total

0 672 62 734

91.55 8.45 100.00

83.90 78.48 83.41

1 129 17 146

88.36 11.64 100.00

16.10 21.52 16.59

Total 801 79 880

91.02 8.98 100.00

100.00 100.00 100.00

PA279 . tab sentence0 FD_white, column row

Key

frequency

row percentage

column percentage

FD white

sentence0 0 1 Total

0 634 195 829

76.48 23.52 100.00

95.20 91.12 94.20

1 32 19 51

62.75 37.25 100.00

4.80 8.88 5.80

Total 666 214 880

75.68 24.32 100.00

100.00 100.00 100.00

PA280 . tab sentence0 FD_black, column row

Key

frequency

row percentage

column percentage

FD_black

sentence0 0 1 Total

0 263 566 829

31.72 68.28 100.00

91.00 95.77 94.20

1 26 25 51

50.98 49.02 100.00

9.00 4.23 5.80

Total 289 591 880

32.84 67.16 100.00

100.00 100.00 100.00

PA281 . tab sentence0 FD_hispanic, column row

Key

frequency

row percentage

column percentage

FD_hispanic

sentence0 0 1 Total

0 773 56 829

93.24 6.76 100.00

94.50 90.32 94.20

1 45 6 51

88.24 11.76 100.00

5.50 9.68 5.80

Total 818 62 880

92.95 7.05 100.00

100.00 100.00 100.00

PA282 . tab sentence0 anywhite_v_dum, column row

Key

frequency

row percentage

column percentage

anywhite_v_dum sentence0 0 1 Total

0 579 250 829

69.84 30.16 100.00

96.82 88.65 94.20

1 19 32 51

37.25 62.75 100.00

3.18 11.35 5.80

Total 598 282 880

67.95 32.05 100.00

100.00 100.00 100.00

PA283 . tab sentence0 anyblack_v_dum, column row

Key

frequency

row percentage

column percentage

anyblack_v_dum

sentence0 0 1 Total

0 328 501 829

39.57 60.43 100.00

90.11 97.09 94.20

1 36 15 51

70.59 29.41 100.00

9.89 2.91 5.80

Total 364 516 880

41.36 58.64 100.00

100.00 100.00 100.00

PA284 . tab sentence° anyhisp_v_dum, column row

Key

frequency

row percentage

column percentage

anyhisp_v_dum

sentence0 0 1 Total

0 757 72 829

91.31 8.69 100.00

94.51 91.14 94.20

1 44 7 51

86.27 13.73 100.00

5.49 8.86 5.80

Total 801 79 880

91.02 8.98 100.00

100.00 100.00 100.00

PA285 . logistic sentence0 anywhite_v_dum anyhisp_v_dum p_v_witness p_felony p_d_risk p_torture p_death p_ > d_noconvict d_impaired d_age sum_other_mit MultiVictims sex_convict rob_convictO burg_convictO p > h_resis v_lh_brutal v_lh_hide v_lh_execution v_ih_ambush age_mean private courtappt gp_acc mst_id > eapon witnessl co_def IQ71_90 Allegheny Phila

Logistic regression Number of obs 880 LR chi2(47) 162.34 Prob > chi2 0.0000 Log likelihood = -113.5761 Pseudo R2 0.4168

sentence0 Odds Ratio Std. Err. z P>IzI [95% Conf. Interval] anywhite_v_dum 5.36465 2.658665 3.39 0.001 2.030929 14.17059 anyhisp_v_dum 2.6502 1.753163 1.47 0.141 .7247546 9.69095 p_v_witness .5306675 .5008996 -0.67 0.502 .083439 3.375015 p_felony .1942402 .1483568 -2.15 0.032 .0434719 .8679001 p_d_risk 1.41316 1.008233 0.48 0.628 .3490541 5.721234 p_torture 1.178532 .9406226 0.21 0.837 .2465875 5.632634 p_death .8944817 .7771245 -0.13 0.898 .1629478 4.910144 p_murder 5.768042 5.48684 1.84 0.065 .8939729 37.21623 p_drug .0159394 .0232194 -2.84 0.004 .0009173 .2769773 p_v_drug .0468635 .0606164 -2.37 0.018 .0037139 .591339 p_v_12 .7595297 .7134825 -0.29 0.770 .1204892 4.78786 p_agg 2.66695 .9504617 2.75 0.006 1.326353 5.36254 d_disturbed 6.071074 4.424823 2.47 0.013 1.455052 25.33102 d_noconvict 1.102019 .6945109 0.15 0.877 .3204406 3.789925 d_impaired 1.088792 .780765 0.12 0.906 .2670267 4.439514 d_age 2.747855 1.700643 1.63 0.102 .8169329 9.242747 sum_other_mit .9779456 .1436629 -0.15 0.879 .7332817 1.304243 MultiVictims .1766735 .169622 -1.81 0.071 .0269119 1.159843 sex_convict 4.335771 4.217081 1.51 0.132 .6444155 29.17203 rob_convictO .7511734 .4987831 -0.43 0.667 .2044268 2.760213 burg_convictO 2.025261 1.419723 1.01 0.314 .5126043 8.001653 psych0 .7509677 .3664663 -0.59 0.557 .2885636 1.954344 vlfamily 1.108993 .7621255 0.15 0.880 .2883789 4.264755 vlhadkids .7017091 .3271111 -0.76 0.447 .2814221 1.74967 vlknife 1.020852 .6357505 0.03 0.974 .3012069 3.45988 vlbarehands .7601397 .6047004 -0.34 0.730 .1598645 3.614387 v_lh_resis .8846184 .4491854 -0.24 0.809 .3269932 2.393168 v_lh_brutal .4267988 .2673201 -1.36 0.174 .12505 1.456675 v_lh_hide .5317614 .3004264 -1.12 0.264 .1757187 1.609221 v_lh_execution .4073522 .2174497 -1.68 0.092 .143083 1.159717 v_lh_ambush 1.291922 .6943359 0.48 0.634 .4505705 3.704329 age_mean 1.009212 .0227997 0.41 0.685 .9655006 1.054903 private .2826385 .1394009 -2.56 0.010 .1074998 .743113 courtappt 1.103713 .5979848 0.18 0.855 .3816636 3.191772 gp_acc .8758869 .8289724 -0.14 0.889 .1370373 5.598315 mst_id .7283492 .4399388 -0.52 0.600 .2229438 2.37949 gp_nc 1.594897 .8123451 0.92 0.359 .587735 4.327965 gp_notist 1.46638 .7717875 0.73 0.467 .5226862 4.113886 ad_guilt .3162547 .2264775 -1.61 0.108 .077709 1.287072 gp_d_psyiat .5100853 .3005542 -1.14 0.253 .1607293 1.61879 p_evi 1.761888 .8496636 1.17 0.240 .6846831 4.533848 ev_weapon .7194602 .3380768 -0.70 0.483 .2864338 1.807129 witnessl .4049126 .1952619 -1.87 0.061 .1573564 1.041929 co_def 1.876992 1.031118 1.15 0.252 .6395261 5.508922 IQ71_90 4.179393 1.820779 3.28 0.001 1.779434 9.816226 Allegheny .5187414 .3534216 -0.96 0.335 .1364653 1.971876 Phila. .1331595 .0921227 -2.91 0.004 .0343156 .5167161 cons .0172487 .0175169 -4.00 0.000 .0023568 .126238

Note: _cons estimates baseline odds.

PA286 Variable Names Key FD white: White defendant FD black: black defendant FD_hispanic: Hispanic defendant Anywhite_v_dum: Any white victim Anyblack_v_dum: Any black victim Anyhisp_v_dum: Any Hispanic victim p_v_witness3: Victim was a prosecution witness, as determined by field coders (the death penalty given analysis used the variable p_v_witness, indicating that prosecutors filed this aggravator) p_v_felony3: Murder committed in perpetration of felony, as determined by field coders (the death penalty given analysis used the variable p_v_felony, indicating that prosecutors filed this aggravator) p_d_risk3: Defendant knowingly created grave risk of death, as determined by field coders (the death penalty given analysis used the variable p_d_risk, indicating that prosecutors filed this aggravator) p_torture3: Victim was tortured, as determined by field coders (the death penalty given analysis used the variable p_torture, indicating that prosecutors filed this aggravator) p_death3: Defendant convicted of other offense carrying life/death, as determined by field coders (the death penalty given analysis used the variable p_death, indicating that prosecutors filed this aggravator) p_murder3: Defendant convicted of another murder, as determined by field coders (the death penalty given analysis used the variable p_murder, indicating that prosecutors filed this aggravator) p_drug3: Murder committed during drug felony, as determined by field coders (the death penalty given analysis used the variable p_drug, indicating that prosecutors filed this aggravator) p_v_drug3: Defendant was associated with victim in drug trafficking, as determined by field coders (the death penalty given analysis used the variable p_v_drug, indicating that prosecutors filed this aggravator) p_v_12_3: Victim was under 12, as determined by field coders (the death penalty given analysis used the variable p_v_12, indicating that prosecutors filed this aggravator) p_agg3: Number of Aggravating Factors, as determined by field coders (the death penalty given analysis used the variable p_agg, indicating that prosecutors filed this number of aggravators) d_noconvict: No significant history of prior crime d_disturbed: Extreme mental or emotional disturbance d_impaired: Subst. impaired capacity to appreciate criminality d_age: Youthful age of defendant at time of crime sum_other_mit: Number of mitigating factors presented by defense MultiVictims: Multiple victims sex convict: Concurrent sex offense conviction rob_convictO: Concurrent robbery conviction

PA287 burg_convictO: Concurrent burglary conviction psych0: Defense asked for psychiatric evaluation v lfamily Victim was a family member vlhadkids: Victim had children v lknife Victim killed with knife v lbarehands: Victim killed with bare hands (reference: killed with gun) v_lh_resis: Victim didn't resist v_lh_brutal: Victim was killed in an especially brutal manner v_lh_hide: Defendant tried to hide victim's body v_lh_execution: Victim killed execution style v_lh_ambush: Defendant ambushed victim age_mean: Defendant age (years) private: Private attorney courtappt: Court appointed attorney (reference category: public defender) gp_acc: Defense claimed killing was an accident mst_id: Defense claimed mistaken identity gp_nc: Defense claimed witnesses not credible gp_notl st: Defense claimed killing not first-degree murder ad_guilt: Defendant admitted guilt gp_d_psyiat: Defense presented psychiatric expert witness p_evi: Physical evidence present ev_weapon: Weapon linked to defendant witnessl: Eye -witness testified co_def: Co-defendant testified against defendant IQ71_90: Defendant IQ between 71-90 jurydum: Sentenced by Jury (in death penalty models only) Allegheny: Allegheny County (in some models) (reference catetgory: other field data counties). Phila: Philadelphia County (in some models) (reference catetgory: other field data counties).

PA288 SUPREME COURT OF PENNSYLVANIA

AND

THIRD JUDICIAL CIRCUIT OF THE U.S.

REPORT

JOINT TASK FORCE

ON

DEATH PENALTY LITIGATION

IN PENNSYLVANIA

July 1990

PA289 TABLE OF CON-TENTS

Page

Executive Summary

1 1.0 Background 4 2.0 Needs, Issues, and Proposed Solutions in Pennsylvania

4 2.1 A Review of the Problems 4 2.2 The Resource Center 5 2.3 The Responsibilities of the Resource Center 9 2.4 Potential Caseload 12 2.5 Staffing 13 2.6 Benefits 14 2.7 Funding 15 2.8 Location 16 2.9 Personnel 19 2.10 Board of Directors Center 20 2.11 Proposed Budget for Pennsylvania Death Penalty Resource 22 3.0 Attorney Qu,lifications and Compensation 22 3./ Overview 23 3.2 Qul;ric-ations 24 35 Certification Board 2.5 3.4 Compensation -Appointed 3.5 Proposed StateWide Qualification Standards For Court 26 Counsel in Capital Cases

33 4.0 Tracking 37 5.0 Future Initiatives

Appendix A: Task Force Roster

Appendix B: Sub -committee Roster

Appendix C: Contributor

PA290 Death Pcnairy Report My 1?0- Page

EXECUTIVE SUMMARY

Recent decisions of the Supreme Courts of the United States and Pennsylvania, the willingness of the Governor to sign death warrants in appropriate cases, the number of litigated capital punishment cases in Pennsylvania crystallize the fact that the Commonwealth and the federal courts soon will be faced with numerous, actively litigated death penalty cases, as well as executions. The recent experience of the state and federal courts in the southern states which are confronted with a huge number of inmates on death row displays the tremendous burden on the entire legal system caused by this Litigation, Nationwide, median defense costs for federal collateral attack litigation is 5I20,000 per litigant, with fees and expenses in some cases as high as 51.2 million.2 Litigation often stretches over a multi -year period. Yet retrials, mandated by state or federal review due to fundamental defects in the trial or sentencing process, are ordered in thirty-five percent of the actively litigated cases. The litigation is complex, as it involves difficult constitutional and procedural issues and matters of comity, as well as voluminous records.

As a matter of necessity, for reasons of fundamental fairness, and because of the impact these cases haVe on the legal system, prosecutors, defenders, state legislatures, bar associations, and state and federal courts have joined forces to consider systematic responses to a problem of major proportions? Pennsylvania, now, is squarely confronted with the problem, and creative responses have been sought under the leadership of a Task Force jointly commissioned by the Supreme Court of Pennsylvania and the Third Judicial Circuit of the United States.

This summary is provided merely as a convenience to the reader. The Report is the definitive work product of the Task Force. Number references in the Summary correspond to numbered sections in the Report.

2 This amount represents the average cost per case where no resource center is involved. In a study prepared by the ABA Post -Conviction Death Penalty Representation Project for the Florida legislature and the Governor of Florida, attorney time, expenses, and fees were surveyed at every level of the conviction/appeals/collateral attack process. The study covered a sample of 24 states. Median attorney hours were as follows: state trial court, 400; state supreme court, 200; U.S. Supreme Court (1), 65; federal district court, 305; federal circuit court, 320; and, U.S. Supreme Court (2), 180; total, 1470 hours. Similar figures were reported on support staff hours and expenses. (The Spangenberg Group, Caseload and Cost Projections for Federal Habeas Corpus Death Penalty Cases in FY 1988 and FY 1989 , Sept. 1987.)

The costs described here are for the defense of condemned prisoners. Costs to the state are not immediately apparent, but nonetheless are real. Costs borne directly by prosecution arc presumably subsumed in state and county budgets but which nonetheless impact on the administration of justice by forcing reallocation of scarce resources. Constitutional and statutory mandates generally require the state or county to bear the costs of defending an indigent defendant. Thus, all branches of the state government have cooperated in the development of a systematic approach to the problem.

3 With 116 inmates on death row, Pennsylvania has the fifth largest death row population in the nation. Fifty-six (56) cases in Pennsylvania are in an advanced stage of litigation. Assuming The median cost of defense ($120,000) and case -related expenses($4,000), the potential cost of litigation for just these cases would amount to $6.94 million. (Figures derived from the Spangenberg Group, Caseload and Cost Projections for Federal Habeas Corpus Death Penalty Cases in FY 1988 and FY 1989 , Sept. 1987.)

PA291 Death Fcrialcy Rcporl July 19'4 Page ii

1.0 BACKGRQUND

The Task Force was initiated by Chief Justice Robert N.C. Nix, Jr,, and then -Chief Judge John J. Gibbons, on behalf of the state and federal courts in Pennsylvania. They appointed a distinguished Task Force chosen from each governmental branch of the Commonwealth, from the federal courts, from the Bar, and from community and national organizations. U.S. District Judge Alan N. Bloch (W..D. Pa) was appointed Chair of the working group, The first task was to identify specific problems confronting Pennsylvania.

A Review of the Problems

The Task Force identified the following problems being faced by Pennsylvania directly impacting on capital litigation:

There is an absence of any widely accepted method for the identification, training, and appointment of counsel who are qualified to handle capital cases at the state and federal trial, appellate and post -conviction levels.

(b) Attorneys appointed at the federal habeas level are often unable to return to state court to exhaust critical issues.

(c) There is no centralized agency to track eases.

(d) There is a volume of cases ripe for state or federal post -conviction proceedings within the next two years.

(e) Few attorneys are well -versed in this area of criminal law and public defender offices are ill-equipped to deal with the potential onslaught of coming cases.

(f) There is a potential shortage of attorneys able and willing to litigate this type of case in the state and federal courts.

(g) Concerns regarding the adequacy of resource assistance and training, as well as the adequacy of compensation and reimbursement for expenses, may deter otherwise available attorneys from accepting appointment in these cases.

2.0 THE RESOURCE CENTER

The Task Force has recommended the establishment of a Resource Center as the primary method of addressing these problems. The Center would be established as a non-profit Pennsylvania corporation to be designated as a federal community defender organization as outlined in 18 U.S.C. § 3006A(g)(2)(B). Staffed initially by five att.t and three support staff, the Resource Center would be funded by state, and federal monies allocated for its. a-uffiarized activities. It would be subject to traditional methods of fiscal accountability, satisfying generally accepted accounting principles, and to audits required by the state and federal governments.

In developing the Resource Center, members of the Task Force considered pilot progra.ras already in operation in other jurisdictions, notably California, Tennessee, Florida, and Georgia. In shaping the various models to meet Peruasylvania's unique character, guidelines were established. Though cases are being litigated and funding is generally available at most

PA292 Death Penalty Report Juiy Page iii levels of the process for continuing representation, the Task Force determined that there is a shortage of qualified capital litigators and that a primary objective of the Center is to train counsel. In contrast to models developed in other states, the Task Force suggests that an organization be established that would be primarily a 'resource" as opposed to a -litigation" center, although some direct representation in the State and Federal courts of Pennsylvania would be done by the Resource Center staff attorneys.

The Responsibilities of the Resource Center

The Task Force recommends that the following responsibilities be assigned to the Center:

A. To track all capital cases through the trial, appellate and post -conviction levels to further the provision of continuing, competent representation and the gathering of relevant data.

B. . Through recruitment arid screening, to establish and maintain a panel of attorneys who are qualified and available to represent persons at ail levels of litigation in capital cases..

C. To provide assistance to these appointed defense attorneys, and other retained defense attorneys involved in all stages of capital litigation, in identifying legal is -sues and preparing, appropriate legal documents and arguments on behalf of their clients.

D. To coordinate educational resources with other state and national orgaqi7ntions which provide legal assistance to inmates in capital cases in other states at both the state and federal levels.

E. To develop Pennsylvania specific resources, such as substantive and procedural manuals, and coordinate CLE activities concerning capital litigation.

F. -To directly represent defendants in appellate and collateral attack litigation, in both state and federal courts in Pennsylvania. Resource Center staff attorneys' direct representation and participation in litigation will be limited by federal and state law to rases arising from the respective jurisdictions.

3.0 ATTORNEY QUALIFICATIONS AND COMPENSATION

The Task Force determined that a critical component in any solution to the problems of capital litigation is the provision of minimally certified and adequately compensated counsel. The Task Force recommends the adoption by both the state and federal courts of standards similar to those of American Bar Association and Philadelphia County. A statewide certification board will apply the standards in specific cases and authorize waivers where appropriate. State and federal judges will appoint attorneys who have been approved by the Board of Certification.

Qualifications

While noting that a relatively small pool of qualified attorneys currently ocsts, the

PA293 Dcath Pcmai7 Rt?ort July 1.9.0 Pagc iv committee does not suggest dilution of the standards to create a larger pool. Instead, it is anticipated that a properly funded and staffed resource center, continuing legal education, and the experience of serving as associate counsel in capital cases will combine to create, gradually, a larger pool of qualified counsel.

The Task Force relied heavily on the Philadelphia County standards which have proven successful and acceptable to the courts and the prosecutorial and defense bars. In addition, the vast majority of defendants emanate from Philadelphia and Allegheny Counties and the experiences of these jurisdictions were instructive. The Task Force recognizes that the experience of smaller counties may not mirror that of the larger, urban areas, but it nonetheless recommends uniform application of standards in all counties. It is recognized that not every attorney will meet the standards in the first instance, but with waivers in appropriate cases and the training program, it is assumed that the pool of qualified counsel in all regions of the state will grow.

, The standards should be mandatory and unifornay applied statewide in both the state and, federal courts. Standards should be implemented by rules promulgated by the Supreme Court, by the Judicial Council of the Third Circuit, or by the United States Court of Appeals and the individual District Courts, as appropriate, The Task Force recommends that appointing judges choose only attorneys certified by a statev,ide board.

Certification Board

A Board of Certification will review the qualifications of attorneys and administer pools of qualified attorneys. The Board will consider applications from attorneys, with a regional breakdown similar to that of the federal district court divisions, forming Western, Middle, and Eastern districts. The Board will certify attorneys in strict adherence to the standards, but where appropriate the Board may recognize certain kinds of experience which would be treated as equivalent to particular standards. The Board perioclielly may review the continuing qualifications and performance of pool attorneys and revise the list as necessary.

Compensation

A statewide compensation plan for the costs of state court litigation should be mandated. A critical component of the plan is a provision for payment of preliminary expenses via interim petitions for -reimbursement. While most attorneys can await the final payment of fees, advancing expenses for lengthy litigation can be burdensome or impossible for small firms.

4.0 TRACKING

There exists a need within Pennsylvania to identify capital casts and update the status of such cases as they move through the state and federal court systems. Presently, there is no single source to collect and process information on the status of capital cases within Pennsylvania. Research indicates that in other states, where there exists no single organization which has responsibility for defending capital cases, haphazard and unreliable. methods of tracking are employed.

The dual function of the proposed tracking system is to identify the existence of all state and federal capital cases in Pennsylvania at the earliest possible time in order to facilitate the appointment of qualified counsel if necessary to the case, and to maintain the status of all capital cases at all levels of the state and federal court systems in Pennsylvania. Cases will be

PA294 Death PcmaIzy Ficport July 19W, rage V tracked through the state and federal trial and appellate court systems and will include dispositions by the Supreme Court of the United States.

Various options were explored but for purposes of tracking state cases, it is recommended that Supreme Court of Permylvania amend Rule 352, Pa.R.Crim.P., which requires the District Attorney to give notice of aggravating circumstances which trigger a capital ease. The Rule should be amended to require that notice of a capital case be provided to the Resource Center at the same time.

Once the case has been reported, the Resource Center will collect data regarding the status of the case at all levels within the state and federal court systems.

As to the design of a computer tracking program, personnel within the Administrative Office of Pennsylvania Courts and the U.S. Court of Appeals are available to develop a program to meet the requirements recommended herein.

5.0 FUTURE NITIAT1VE$

The Task Force recommends secure, adequate and continuing funding for the Resource Center and its related activities. Various sources of funding, such as foundation grants and bar association donations, were dismissed as unreliable, because the experience nationwide has been that such sources often provide only temporary assistance. A permanent, secure source of funding is essential to the viability of the Center, and is a precondition to continuing federal funding. The most appropriate source of funding is a combination of the state and federal governments. Federal funding is available, but contingent on comparable state funding.

Over a single dissent, the Task Force recommends that funding for the Resource Center and related activities be sought in the form of a line item in the budget of the Judiciary of Fenncylvania. The proposed funding should represent 50% of the estimated budget for start- up and first year expenses (approximately 5300,000), with the federal judiciary authorizing the remaining fifty percent. Future budgets should be funded in a similar way, consistent with the needs of the Center.

Conclusion:

The Task Force concludes that the establishment of the Resource Center and the implementation of other suggestions of its Report will serve the needs of the all interested parties. The issue is not the morality or legality of the death penalty; the former will remain subject to debate --the latter has been and will be tested in the courts. Nor is the issue one of favoring the interests of one group over those of another.

Instead, the problem is systemic, affecting individuals, all branches of government, and society at -large. The Task Force has focussed on proposing means to address a major problem, while accommodating a variety disparate needs and interests: the constitutionally required provision of adequate representation of counsel to capital defendants; the training and support of, and compensation for attorneys dedicated to capital Litigation; the interest of finality litigation which will be provided by better tried cases and fewer necessary retrials; the provision of all of the above in a manner which is cost-effective in a time of scarce resources, yet in a manner which is consistent with fundamental fairness.

The document reflects substantial disagreements and compromises. All members

PA295 Duch Pcnairy Rcport. July 1990 Page vi agree, however, that the Resource Center and related proposals should be implemented, with the only substantial dissent being in the appropriate budgetary locus of the Center. (Other clisveements with respect to exact attorney qualifications and standards are within the scope of policy properly determined by the courts.) Yet all are in agreement that in order to address a problem of major dimensions confronting the Commonwealth and the federal system, all interested authorities should act favorably on the Report and its provisions.

PA296 Dc.alh Pcnalry Report Juiy 1990 - Page I

LO BACKGRQUN1D

Recognizing a variety of complex and vexing problems with respect to death penalty litigation in Pennsylvania, Chief Justice Robert N.C. Nix, Jr., of the Supreme Court of

Pennsylvania, and then -Chief Judge, John J. Gibbons, of the United States Court of Appeals for the Third Circuit, convened a Task Force to consider the problems. The Task Force, comprised of distinguished members of the State and Federal Judiciary, the State Legislative and Executive branches, the Bar, academia, representatives of the American Bar Association, and court executives, met on April 18, 1989.

The Task Force identified the following primary problems:

(a) Providing competent representation of counsel at the trial, appellate, post - conviction levels of state litigation, as well as federal habeas corpus review;

(b) Monitoring the status of cases and representation in the state and federal courts;

(c) Establishing qualification standards for court appointed attorneys;

(d) Providing adequate compensation for court appointed attorneys; and,

(e) Developing means to provide continuing legal education.

The Task Force earned and charged a Subcommittee to explore the problems and to

propose appropriate actions. The charge to the Subcommittee reads, as follows:

" WHEREAS, the Task Force jointly convened by the Supreme Court of Pearasy/vania

and the United States Court of Appeals for the Third Circuit has identified the following needs

with respect to the provision of counsel in death penalty cases, to wit:

(a) To monitor and track all cases involving death -sentenced inmates to assure that competent counsel are available to the inmate at all times; -C

PA297 Dcath Penalty Report Juiy 1950 Page 2

(b) To recruit and screen qualified attorneys willing to be appointed in post -conviction death penalty cases;

(c) To develop training programs for all attorneys qunll fled and interested in accepting post -conviction death penalty cases in both state and federal courts;

(d) To provide ex-pert legal consulting services to attorneys appointed in state and federal post -conviction cases including joint visits to the inmate, his family and friends; frequent travel to meet with counsel of record to review pleadings, motions and briefs; review of the trial transcript; review of the entire record; attendance at court hearings; provision of sample pleadings and briefs; and provision of full moot hearings before oral argument;

(e) To develop clinical programs at law schools to provide law student assistants to appointed attorneys and for educational purposes;

To make available paralegals, investigators and expert witnesses as needed; and

(g) To develop a comprehensive list of local and national expert witnesses who might prove valuable to appointed counsel.

NOW, THEREFORE, the subcommittee is charged to explore structures and processes which will solve Pennsylvania's needs with respect to the provision of counsel in cases in which indigent prisoners are sentenced to death. The subcommittee is further charged to

consult and confer with representatives of the Bar, academia, the judiciary, the legislative and

executive branches of government, as needed. The subcommittee is charged to report back to

the Task Force with a report and recommendation at its earliest convenience.

" Is/Robert N.C. Nix, Jr. /s/John J. Gibbons Chief Justice Chief Judge Supreme Court of Pennsylvania United States Court of Appeals for the Third Circuit "

PA298 Death Fcnalry Report Ai; 1990 - Page 3

The Subcommittee was convened by U.S. District Judge Alan N. Bloch (W.D. Pa.).

It met as a whole and in committee numerous times, and it now issues this report and recommendation to the Task Force. A primary emphasis has been to examine and propose solutions which would apply to all levels of death penalty litigation in Pennsylvania, from state trial through habeas corpus review in the federal courts. Uniformity has been emphasized in the areas of tracking methods and attorney qualifications and compensation. The Task Force views the establishment of a resource center as an essential element in the provision of constitutionally mandated, adequate representation of counsel for capital defendants. Members of the Subcommittee are listed in the appendix.

The Task Force and the Subcommittee met on April 17, 1990, to consider the draft report. After substantial discussion of the merits of We draft, the, joint group approved the

Report, over a single dissent. The dissent focussed on the budgetary locus of the Center and whether the Report should aggressively support additional funding and training for prosecutors.

In an attempt to reach a workable accommodation, Chief Justice Nix and Chief Judge

Higginbotham requested a small focus group to consider approaches which would render the

Report unanimous. The focus group met and considered Various options. It was concluded that a dissent would be filed. The Final Report, with the addition of footnote and the Executive

Summary, is issued as approved by the Task Force, April 17, 1990. The dissent also is attached.

As a final note, the Task Force notes with sorrow the passing of a member, George

Schumacher, Federal Public Defender of the Western District of Pennsylvania, who died May

1, 1990. His contributions were substantial, and his presence is missed.

PA299 Dush Ftnaity Report July 174 - Page 4

2.0 REEDS, IS_SUES, AND PROPOSED SOLUTIONS IN PENNSYLVANIA

2.1 A Review of the Problems

The problems being faced by Pennsylvania directly impacting on capital Litigation are:

(a) There is an absence of any widely accepted method for the identification, training, and appointment of counsel who are qualified to handle capital cases at the state and federal trial, appellate and post -conviction levels.

(b) Attorneys appointed at the federal habeas level arc often unable to return to state court to exhaust critical issues.

(c) There is no centralized agency to track cases.

(d) There is a volume of cases ripe for state or federal post -conviction proceedings within the next two years.

(e) Few attorneys are well -versed in this area of criminal law and public defender offices arc. ill-equipped to deal with the potential onslaught of coming cases,

There is a potential shortage of attorneys able and willing to litigate this type of ,case in the state and federal courts.

(g) Concerns regarding the adequacy of resource assistance and training, as well as the adequacy of compensation and reimbursement for expenses, may deter otherwise available attorneys from accepting appointment in these cases.

2.2 The Resource Center

The Resource Center would be established as a non-profit Pennsylvania corporation to be designated as a federal community defender organization as outlined in 18 U.S.C. §

3006A(g)(2)(B). Staffed initially by five attorneys and three support staff, the Resource Center

would be funded by state, federal, and private monies allocated for its authorized activities. It

would be subject to traditional methods of fiscal accountability, satisfying generally accepted

accounting principles, and to audits required by the state and federal governments.'

4 Careful auditing is required by both the Pennsylvania Judiciary, under the Judicial Auditing Agency, 42 Pa.C.SA.§3529, and the Administrative Office of the U.S. Courts, 18 U.S.C. §3055A(i).

PA300 Death renztry Report July 1990 - Page 5

In developing the Resource Center, members of the Task Force considered pilot programs already in operation in Tennessee, Florida, and Georgia. In shaping the various models to meet Pennsylvinia's unique character, some guidelines were established.

Unlike Florida, where there is a problem with a shortage of both attorneys and funding to meet the demand, Pennsylvania may be faced with a different problem. Though cases are being litigated and funding is generally available at most levels5 of the process for continuing representation, it is believed that the effectiveness of the representation may be affected by a shortage of trained and experienced capital litigators and the absence of any me-tn< to effectively recruit and train lawyers. The decision was made to establish an organi7atioc, that would be primarily a "resource' as opposed to a "litigation" center. Some direct representation in the State and Federal courts of Pennsylvania would be done by the Resource Center staff attorneys, to complement the primary function of the Center as a resource and educational facility. The appropriate amount of direct representation will be determined by the Director in lizht of circumstances.

23 ,The Responsibilities of the Resource Center. The Task Force committee recommends that the following responsibilities be assigned to the Center:

2.3.1 To track all capital cases through the trial, appellate and post -conviction levels

to further the provision of continuing, competent representation and the gathering of relevant

data.

5There is a often a gap in representation, for example, after the completion of the state appellate process and the initiation of post -conviction relief. At the initiation of federal proceedings, there may also be a gap between the exhaustion of available state remedies (appellate or PCRA) and the filing of the federal petition for writ of habeas corpus. Counsel can be appointed after the filing of the petition, but not during its preparation phase, There is provision, however, for nuns nro Rine appointment of counsel after the filing of the petition in the federal district court, provided that the inmate is indigent. Thus, subsequently appointed federal counsel may be able to be compensated for preparation.

PA301 Dc.sth Pcrizfry Reran Juiy 1990 - Page 6

Commentary

The Resource Center will begin to track all potential capital cases as early in the process as possible. Utilizing a number of sources, the Resource Center will attempt to identify potential capital cases at the trial level and monitor them through the entire process.

Once an individual has been sentenced to death, the Resource Center would continue to monitor the case through the appellate and post -conviction process.

In addition to assisting the work of the Resource Center, the tracking function will provide information to the several courts which have authority to appoint counsel., as well as to other governmental agencies.

232 Through recruitment and satcning, to establish and maintain a panel of

attorneys who are qualified and available to represent persons at all levels of litigation in capital

cases.

Commentar:

When it becomes apparent through case monitoring that an attorney is needed at some level in the process --trial, appeal, or post -conviction, the Resource Center would assume responsibility for identifying qualified counsel willing to be appointed. The Resource Center will use a list of qualified attorneys furnished by the Board of Certification, (, Section 3, infra.) That Board will certify qualified attorneys for inclusion on the panel according to its procedures and rules as promulgated by the Supreme Court of Pennsylvania. Only attorneys certified by the panel shall be available for appointment in these cases.

23.3 To provide assistance to these attorneys, and other attorneys involved in all

stages of capital litigation, in identifying legal issues and preparing, appropriate legal documents

and arguments on behalf of their clients.

PA302 Dc_ath Pcnalry Rc?ort July 1993 Pagc 7

Cornrnentary

When an attorney has been appointed to a capital case, the Resource Center will be available to provide a number of services. The Resource Center staff will provide information concerning the various avenues for litigation and requirements at each step.

Once issues are identified., the Resource Center will make available to the attorney, written resources such as sample pleadings and briefs. The staff of the Resource Center will develop a manual which clearly describes each step of the process, what is required of defense counsel, and the resources available.

The Resource Center staff will be available to assist in the preparation and review of briefs and pleadings throughout the litigation process. In cases in which expert assistance may be needed, the Resource Center will be available to assist in identifying this need and to provide information concerning the availability of experts.

23.4 To coordinate educational resources with other state and national organizations

which provide legal assistance to inmates in capital ca.ses in other states at both the state and

federal levels.

Commentary

It is imperative that agencies involved in capital litigation establish and maintain a network to share educational information. The Resource Center would enhance already existing networks in order to work cooperatively with other state and national organizations involved in capital litigation. Joint projects may include a regular exchange of information through newsletters or brief sharing, joint development of mutually advantageous resources, and a division of labor among organizations to develop comprehensive resources. Networking, will also allow simultaneous litigation on issues relevant to 'arious states or regions and aid in identifying regional or national issues through shared case data.

Arras which would benefit greatly through networking would be the recruitment and training of attorneys available for appointment.

PA303 Dcath Pcrtalty Report Jttty 15% Pagc 8

23.5 To develop Pennsylvania specific resources and coordinate CUE activities

concerning capital litigation.

Commentary

One of the first training projects of the Resource Center staff should be the development of manuals for attorneys at every level of the process: trial, appeal, state post -conviction and federal post conviction. The rapidly expanding library of resources on capital litigation should allow the Resource Center staff to draw from already existing material for the majority of the manual. An early task of the Resource Center will be the editing of materials and the developing of Pennsylvania -specific resources which enable the attorney to draw from existing tnaterials. Included in the manuals should be an outline of the legal steps at all levels of the process, sample motions, an issues index, and a comprehensive and current list of resources available through the Resource Center.

in addition to preparing written resources, the Resource Center would work cooperatively with Continuing Legal Education (CLE) providers, such as the Pennsylvania Bar Institute to develop capital seminars and conferences.

The Resource Center will be active in recruiting law students interested in working as interns in the area of capital litigation.

2.3.6 To directly represent clients in appellate and collateral attack litigation, in both

state and federal courts in Pennsylvania. Resource Center staff attorneys' direct representation

and participation in litigation will be limited by federal arid state law to eases arising from the

respective jurisdictions.

Commentary

Planned primarily as a Resource Center, there will be some direct litigation of capital cases at the post -conviction stage, state or federal. Beyond the basic criteria of need, cases litigated by the Resource Center might include: those which present broad constitutional issues pertinent to a number of cases; those which involve emergency situations; those in which a court appoints the Center because it has particular familiarity with a case. and\ or other counsel could not go forward. Direct representation shall be limited to capital

PA304 Dc.:!th Fcia)ty Rcport IvEy 19'O Page 9

Litigants in the State of Pennsylvania and the federal courts.

The goals to be achieved through direct representation include: quality representation of the defendant; enhanced staff credibility by dispelling the image of 'ivory tower" litigators who do not work in the trenches; development of resources for wide circulation; and, direct education of co - counsel.

2.4 Potential Caseload

Prediction of the number of new capital trials each yeas is easier to predict than the number of rases in which state remedies have been exhausted and are ready for federal review.

While state remedies may have been exhausted, there is no impetus to seek federal review until a death warrant has been sighed. Under Pennsylvania law, a sentence of death imposed in the trial court is subject to automatic direct review by the Supreme Court of Pennsylvania. 42

Pa.C.SA. § 9711(h)(1). Upon affirmance and proportionality review, the Supreme Court

transmits the case to the Governor. Before the Governor sirc a warrant, his office engages

in an independent review of the record. Prior to the signing of a warrant, litigation proceeds

at a moderate pace. Once a warrant is signed, the process is stepped -up, and several stages of

Litigation may be completed within a few weeks time. Given these procedures, it is difficult to

predict exactly the flow of cases through the state trial, appellate, and collateral processes to

the federal litigation stage. However, reasonable estimates, based on current statistics, can be

considered.

The latest information available indicates that there are one hundred and sixteen (116)

inmates on death row in Pennsylvania. The convictions and sentences of fifty-six (56) of these

prisoners have been affirmed on direct appeal by the Pennsylvania Supreme Court and have

been transmitted to the Governor. Of these fifty-six (56) cases, no cases are pending in the

Supreme Court of the United States,6 seven (7) cases [1 in the Court of Appeals; 2 in the

6The decision of the Supreme Court of Pennsylvania in case of Blystone v. Pennsylvania (U.S. No, 88-6222) was affirmed by the Supreme Court of the U.S. on February 28, 1990. A petition for writ of certiorari in a different case was denied recently.

PA305 Dcath rtnalry Retort July 19(>0 - Pagc 10

Western District; and, 4 in the Eastern District] are pending in the federal system at various stages of habeas corpus proceedings. Of the remaining cases, forty (40) are pending in various stages of direct appeal in the Supreme Court, approximately 10 are in PCRA proceedings, with the balance of cases in the trial court. New death sentences are being entered at the rate of

15-25 per year.

The number of new death judgments, however, does not reflect the total number of state cases in which the Center could be involved in either consultation or direct representation.

The Center is intended to provide assistance at the state and federal trial, appellate, and post - conviction levels. It is estimated that in an average year the Resource Center could be involved in a maximum range of 90-105 state cases? This range does not reflect the estimated number of new capital trials, death judgments, and warrants. The issuance rate of warrants is a critical factor to both state and federal estimates.

The experience in other states with death penalty laws indicates that the fastest rate of signing warrants has occurred in Florida, where recently two warrants a month have been signed If the Governor of Pennsylvania were to sign warrants at similar rate, two per month,

r This table indicates the number of cases in which the Center could be 'involved" at the state trial, appellate, and post -conviction levels. Involvement" indicates the range of activities from pure resource activities to direct representation.

POSSIBLE STATE WARRANTS 24 12

Capital Trials-State(est.) 60 60 New Appeals -State 20 20 New State PCRA'si 24 12 TOTAL STATE CASES 144 92

These figures assume a number of cases equal to the number of warrants signed.

Two warrants per month (one in a well -litigated case, one in a new case) have been issued. In Pennsylvania, issuance at a rate of two per month would roughly equal the number of new death sentences entering the system.

PA306 Death Pcnairy Report July 1993 - Pagc 11 it would be expected that in mid -1991, a stream of 20-25 cases per year could enter the federal courts? In an average case, it is estimated that the post -conviction relief process (Court of

Common Pleas; Superior Court; Supreme Court of Pennsylvania, allocatur; and, Supreme Court

of the United States, certiorari) will require a minimum of one year to complete. Assuming

an issuance rate of one per month, the stream of cases could average 10-42 cases per year

entering the federal courts.1° In light of the Blystone decision, issuance of warrants can begin

im ediately." Thus, it is reasonable to assume that the inflow of actively and extensively

litinated races to the federal courts will begin in mid -1991. Given the assumption that the

signing of a warrant will propel state PCRA and federal habeas litigation, the downstream

number of federal habeas cases should approximate the number of warrants signed. A range

of 12 to 24 cases per year is postulated.

9 This table indicates the umber of cases in which the Center could be 'involved' at the state and federal trial, appellate, and post -conviction levels. "Involvement" indicates the range of activities from pure resource activities to direct representation.

STATE CASES

New State Warrants 24 12 New State PCRA's' 24 12

FEDERAL CASES

Resulting §22.54's* 24 12 Capital Trials -Federal# 1 1 New Appeals -Federal* 1 1 News 2255's* 1 1

TOTAL FEDERAL CASES 27 15

* These figures assume a number of cases equal to the number of warrants signed. # The estimates on federal capital trials, appeals, and §2255's are guesses.

10 It is postulated that the number of warrants issued will approximate the number of PCRA and habeas cases filed as a result. While it would appear on initial review that the case inventory ought to remain relatively steady, given the facts that not every warrant will result in an execution, that some cases (particularly in the current inventory) will be subject to several levels of litigation, and that there will be a inflow of new cases, gradually the inventory of cases will increase.

"The Governor bad held in abeyance the warrant process, pending Blvstone. Recent press accounts indicate that issuance of warrants will begin the Spring of 1990.

PA307 Death Pcnairy Rcpar, j1,4 1990 - rage 12

While the warrant process is in the Governor's discretion, these estimates and the relative unavailability of qualified counsel suggest the need for prompt establishment of the

Resource Center and adequate staffing. Firsthand information was related which indicates that there are attorneys within Pennsylvania who are willing to accept court -appointed assignments in capital cases but who are reluctant to do so without expert assistance available. Accordingly, the resource function has been structured, and staff requirements have been projected, to meet with what is perceived to be the greatest need: providing expert assistance to appointed counsel.

2.5 Staffing

Eased on information from studies conducted by the Spangenberg Group,2 the minimal., initial level of authorized staffing for the Resource Center should be five attorneys: a director, a senior staff attorney, and three staff attorneys. These attorneys would provide services as described herein. The Spangenberg Group materials indicate that, in providing assistance to other lawyers appointed in capital cases, Resource Center staff attorneys expend

appro;cimately 150 hours per case per year. The Spangenberg Group estimates that an experienced post -conviction death penalty attorney could provide assistance in up to 10 cases

per year and still have some time during the year for training, development of brief banks and

model pleadings, and the providing of other professional legal services required for the

operation of the Resource Center, in addition to allowing for some direct representation of

death penalty litigants in collateral proceedings." It is estimated that in an average year the

Resource Center could be involved in a range of 90-105 state cases and 15-27 federal cases.

12The Spangenberg Group, Caseload and Cost Projections for Federal Habeas corpus Death Penalty Cases in FY 1,)A.,1 and FY 1989 (Sept. 1987), prepared for the Criminal Justice Act Division, Administrative Office of the United States Courts.

13The Spangenberg Group estimates 150 hrs./case. At 10 cases, or 1500 hours, roughly 75% of an attorney's yearly -billable- hours, assuming 2000 hours/year, would be attributable to case participation,

PA308 Death Ferairy Report ju/y ;9`,0 - Pai,-e 13

While the level of Resource Center involvement will vary, it is reasonable to assume initial involvement in at least 40-50 cases per year, because there are at present 96 potentially °active" cases in the system, with an average of 20 cases per year added. The attorneys will also be

devoting a large portion of their time initially to developing training programs in order to have

qualified attorneys available for appointments in proceedings in the State and Federal courts.

As more cases enter the post -conviction stage, consideration will have to be given to increasing

the size of the Center's professional staff (with a necessary increase in its support staff).

2.6 Benefits

The establishment of a Resource Center would positively affect the litigation of capital

cases and the aforementioned problems in the following ways.

The Resource Center would identify qualified attorneys and offer extensive advice and assistance to appointed counsel and other counsel representing death -eligible or death -sentenced inmates.

The staff of the Resource Center would identify counsel from across the state, as well as outside the state, who are available for appointment, assist the courts involved in the appointment process, and offer support for appointed counsel. Additionally, the Resource Center would work with the bar in developing and presenting periodic continuing legal education programs and materials on the topic of capital litigation.

(c) The provision of certified and adequately trained counsel should inure to the benefit of all participant in the litigation process: the defendant, the prosecutor, and the courts. Properly trained and qualified counsel should provide better representation for the defendant, as well as alleviating burdens on the justice system due to inadequately tried casesj4

The Resource Center will provide assistance to counsel at the trial and post - conviction levels which may lead to the early identification and preservation of issues. The Resource Center also may serve as liaison between counsel litigating the habeas corpus petition and those litigating unexhausted issues in the state courts.

14 While the Task Force's charge and primary concern is with competent representation by counsel for defendants, it recognizes that additional resources will be necessary for prosecutors throughout the state. Resources, including development of training programs, can be provided through either the Pennsylvania District Attorneys Institute, the Office of the Attorney General, or both.

PA309 Death Penalty Rcport July - Page 14

(e) The Resource Center will track capital litigation at all levels.

(1) The Resource Center would become the office with primary responsibility for monitoring representation in all capital trials, appeals, post -conviction proceedings, and federal habeas corpus petitions.

2.7 Funding

To truly address the problems discussed, the Resource Center will need to provide services at both the state and federal levels, therefore requiring financial support from both areas.

A prerequisite to federal funding is the designation of the Resource Center as a federal community defender organization. The Resource Center, then, would request Criminal Justice

Act (CJA) funds adequate to support 50% of the u'laries of the Director and four full-time attorneys, and necessary support staff to provide services in the manner outlined above,

Utilizing formulas developed by the Spangenberg Group, it is estimated that at least16

5299,215 in CJA funds, or half of the estimated annual budget, would be required to adequately fund this part of the Resource Center in FY 1991 (assuming a start-up date of 7-1-91). A

15 As noted above, the Resource Center's workload cannot be anticipated with certainty. If cases follow a normal progression, as evidenced by capital litigation in other states, those cases that have been affirmed on direct appeal will proceed through State post -conviction remedies before federal habeas corpus petitions are filed. Given the time it will take to adjudicate those anticipated State post -conviction petitions, it is impossible to say with any degree of certainty how much of the staff attorneys' initial work will be spent aiding attorneys in federal pr ocee dings.

Nonetheless, there will be substantial "federal* work. In anticipation of a case entering the federal system, resource center staff will have to devote substantial efforts to assisting appointed counsel in this new forum. The Resource Center may provide consultation services in connection with reviewing the record of the case and conducting any necessary factual investigation for the purpose of identifying post -conviction claims. Even while this federal work is proceeding, an unexhausted state claim may be identified that will require comparable state work to proceed on a parallel plane, i.e., providing consultation services with respect to state court proceedings. In short, a Resource Center which has sufficient funds to fully support both its state and federal work components will foster continuity of representation and, in so doing, enhance the quality of services provided while reducing the likelihood that resources will be expended on repetitious and costly efforts on the part of all involved.

16Advances on rentals, equipment purchases, etc., may require initial CIA funds to exceed the estimated one-half of the annual budget.

PA310 Dsath Penalry Report July 1990 - Pagc 15 proposed Resource Center budget for FY 1991, which details the figures referenced above, is listed at section 2.11 infra.

Funding from state and federal agencies will be pursued simultaneously. The problem of improving the quality of representation must be addressed at both levels to improve it throughout the capital procedures. It is difficult to accurately separate what is a "state' issue and what is a "federal" issue. The representation of a federal habeas corpus petitioner is impacted by the representation that the petitioner receives at every level of litigation in the state system. Improved representation at the trial, appellate, and post -conviction levels may result in higher quality litigation in the state courts and will reduce the likelihood that a federal court will find it necessary to remand a case to the state courts for a new trial years after the crime.

For this reason, it is imperative that adequate funding be procured to ensure the operation of the Resource Center at all levels of the capital litigation process.

2.8 Location

Because of its centrality, it is recommended that Harrisburg be the location of the

Resource Center. With two law schools in proximity to the State Capital, there will be a pool from which to obtain the voluntary, and possibly paid,'? assistance of law students. Harrisburg is also the location of the State library and law library, with their excellent research capabilities.

Additionally, office space should be less expensive there than in either Philadelphia or

Pittsburgh.

'?It may be possible for qualifying, financially needy, Pennsylvania resident students to be paid by PHEAA (Pennsylvania Higher Education Assistance Act) funds available through their law schools.

PA311 Death Penalty Report July 19Q0 - Page

This location, and its access to major highways and rail and airline transportation, should also permit staff attorneys to get to all areas of the state for consultation in a matter of hours. It is also a central location for the capital prisoners who are housed at institutions throughout the state.

2.9 Personnel

The permanent staff of the Resource Center will initially consist of five full time attorneys, an administrative assistant, a paralegal, and a secretary. Student interns will be recruited from area Iaw schools to provide assistance utilized where possible. Toe specific job responsibilities, qualifications, and annual compensation of permanent staff are outlined.

2.9.1 Director Position

Qualifications: Extensive trial and appellate experience in the defense of

capital cases with the necessary arithinistrative skills to

coordinate the activities of the Resource Center staff.

Responsibilities: Overseeing the overall operation of the resource center;

making personnel decisions; developing an operational

budget and aiding the Board of Directors in raising the

necessary finances to sustain the operation of the resource

center; recruiting and appointing staff; participating in the

process of certifying clunl; fled attorneys; working directly with

the staff attorneys in identifying and developing resources;

aiding attorneys involved in capital litigation.

Representation, as lead or associate counsel, in state or

federal capital proceedings.

Compensation: S60,000

PA312 Dr_alh Penalty Rcpon July 199') Pagt 17

2.9.2 Senior Staff Attorney Position

Qualifications: Trial and/or appellate experience in the defense of capital

cases with the ability to train other attorneys involved in

capital litigation.

Responsibilities: Working directly with the Director in identifying and

developing resources; assuming primary responsibility for

aiding attorneys involved in litigation. Representation, as lead

or associate counsel, in state or federal capital proceedings.

Compensation: 550,000

2.93 Staff Attorney Position

Qualifications: Capital appellate experience or substantial equivalent.

Responsibilities: Working directly with the Senior Staff Attorney in identifying

and developing resources; assuming responsibility for aiding

attorneys involved in capital litigation. Representation, as

lead or associate counsel, in state or federal capital

proceedings.

Compensation: S40,000

2.9.4 Administrative Assistant Position

Qualifications: Strong experience in case management, budget preparation,

grant applications, and general office management;

familiarity with the workings of the criminal justice system

and possessing the necessary skills to aid 'in case

management, data acquisition, budget preparation, and office

administration.

Responsibilities: Managing the daily operation of the resource center,

PA313 Death Penalty Rcpcni Juiy 1990 Page 18

developing and administering an efficient system or resource

procurement, reproduction, cataloging, and distribution;

working with the Director and Board of Directors in

procuring funds for the ongoing operation of the resource

center.

Conapeasation: $22,000

2.9.5 Paralegal Position

Qualifications: A degree in criminal justice, social work, psychology, or a

related field, or equivalent experience; familiarity with the

workings of the criminal justice system and possessing the

necessary skills to aid in case management, date acquisition,

and office administration.

Responsibilities: Overseeing the tracking of capital cases within the state,

monitoring their progress, and bringing any significant cases

to the attention of the staff attorneys; participation in

research and drafting manuals; correspondence; interviewing

families, witnesses, etc., with respect to developing mitigating

evidence.

Compensation: $25,000

2.9.6 Secretary Position

Qualifications: Secretarial skills adequate to assume primary secretarial

tasks.

Responsibilities: Working directly with the attorneys in the research,

development, and distribution of resources; assisting the

Administrative Assistant in the operation of the Resource

PA314 Death PcnaIry Report July 1990 - Page 19

Center; receiving and screening all incoming phone +-nits and

written correspondence and directing them to the proper

member of the Resource Center staff.

Compensation: S19,000

2.10 Board of Directors

The Board of Directors of the Resource Center will oversee the operation of the project, assist in establishing the annual budget, and select the Director.

The Board will consist of six persons (five appointed., voting members, and the Director of the Resource Center cx officio) and will be representative of the criminal defense bar of

Pennsylvania. Membership of the Board shall be as follows:

(a) A federal defender from the Eastern, Middle, or Western Districts of Pennsylvania appointed by the Chief Judge of the United States Court of Appeals for the Third Circuit;

(b) A county public defender appointed by the Chief Justice of Pennsylvania;

(c) A representative of the legal academic community with a background in criminal defense, chosen by the Deans of the University of Pennsylvania School of Law, Temple University School of Law, Villanova University Law School, the Widener University School of Law, the Dickinson School of Law, the Duquesne University School of Law, and the University of Pittsburgh School of Law,

(d) The President of the Pennsylvania Bar Association, or his\her designee;

(e) A member of the criminal defense bar chosen by the President of the Pennsylvania Association of Criminal Defense Lawyers; and,

(f) The Director of the Resource Center, ex officio.

The Board of Directors will serve staggered [three year] terms with vacancies to be

filled by the by the persons or the organizations which originally appointed the member. Board

PA315 Death Pc^zits Report July 1990 - Page 20 members shall not be compensated for their service. They shall, however, be entitled to reimbursement of expenses reasonably incurred in the performance of their duties.

2.11 Proposed Budget for Pennsylvania Death Penalty Resource Center. We project the following budget for fiscal year 1991:

Expense Category Cost

Personnel

Director/Attorney S 60,000 Senior Staff Attorney S 50,000 3 Staff Attorneys 5120,000 Administrative Assistant $ 28,000 Paralegal S 25,000 Secretary $ 19,C00

SUBTOTAL 5302,000

Fringe Benefits @ 34% 5102,680

Temporary help S 10,000 Expert services $ 17,000 -Investigators $ 5,000 -Psychiatrists S 7,000 -Other Experts $ 5,000 (such as ballistics, accountants, handwriting, etc.)

TOTAL PERSONNEL COSTS $431,680

Operating Expense5

Travel $ 10,000 -General(case related) $ 8,000 -Administrative S 2,000 Training $ 7,000 Telephone S 15,000 -Local $ 5,000 -Long Distance $ 10,000 Postage $ 3,000 Freight/Federal Express $ 1,750 Equipment Maintenance $ 5,000 Contractual Maintenance $ 7,500 (eg.,Lexis) Office Space Rental S 30,000 (3,000 sq. ft @ S10/sq. ft.) Office supplies S 8,000

PA316 Death Penalty Report July 1990 - Page 21

Printing & Reproduction S 2,000 Library Subscripts S 1,000 Malpractice Insurance S 2,000 Audit S 3,000

TOTAL OPERATING EXPENSES S 95,250

Start -Up Costs

Library S 10,000 Furniture "M_Q29 Equipment S 36,500 -Photocopier S 14,000

-FAX S 2,500 -Computers S 20,000

TOTAL START-UP COSTS S 71,500

TOTAL PROJECT COSTS (INCLUDING START-UP) S598,430

PA317 Dczth Pcnalry 1R.cport July 1990 - Ngc

3.0 ATTORNEY QUALIFICATION'S AND COM'

3.1 Qverview

The Task Force committee reviewed American Bar Association (ABA), Philadelphia

County, and Allegheny County standards for certification of death penalty litigators and for

compensation. In summary, the committee recommends the adoption by both the state and

federal courts of standards similar to those of Philadelphia County, as modified. A statewide

certification board will apply the standards in specific cases and authorize waivers where

appropriate, e.g., where an attorney has substantial litigation or other specialized experience.

State and federal judges will appoint attorneys who have been approved by the Board of

Certification.

The Task Force relied heavily on the Philadelphia County standards which have proven

successful and acceptable to the courts and the prosecutorial and defense bars. In addition, the

vast majority of defendants emanate from Philadelphia and Allegheny Counties and the

experiences of these jurisdictions were instructive. The Task Force recognizes that the

experience of smaller counties may not mirror that of the larger, urban areas, but it nonetheless

recommends uniform application of standards in all counties. It is recoimiz. ed that not every

attorney will meet the standards in the rust instance, but with waivers in appropriate eases and

the training program, it is assumed that the pool of qualified counsel in all regions of the state

will grow.

In its discussions, the Task Force considered the question of whether minimum

certification standards would create new substantive rights or issues for collateral attack.

Indeed, comments to an earlier draft addressed these concerns, as well. While creative' itigants

may always present many novel issues, appellate courts traditionally have reviewed ineffective

assistance of counsel claims focussing only on the performance of the attorney in a specific case

not the presence or absence of minimum qualifications. Appellate review centers on allegations

PA318 Death Penalry Report Juty 1990 - Page 23 of fact -specific conduct or omissions, together with prejudice of constitutional dimensions emanating therefrom. The Task Force deems a successful collateral attack based on an issue of attorney certification highly improbable given the governing case law of the Supreme Courts of the United States and Pennsylvania and the Court of Appeals.

3.2 Oualifications

The qualification standards of Philadelphia County meet and exceed, in certain instances, those suggested by the American Bar Association. While concerned that a relatively small pool of qualified attorneys currently exists, the committee does not suggest dilution of the standards to create a larger pool. Instead, it is anticipated that a properly funded and staffed resource center, continuing legal education., and the experience of serving as associate counsel in capital cases will combine to create, gradually, a larger pool of qualified counsel.

The standards should be mandatory and uniformly applied statewide in both the state and federal courts. (See Standards, Section 3.5, infra) Standards should be implemented by rules promulgated by the Supreme Court, by the Judicial Council of the Third Circuit, or by the United States Court of Appeals and the individual District Courts, as appropriate.le

41. Appointing judges will choose attorneys certified by a statewide board of certification. An attorney's willingness to have his/her name placed on the Statewide roster would constitute a certification that he/she is willing to undertake one capital case per year outside of the attorney's county of practice," i.e., over and above any cases to which he/she might be appointed in his/her home county. The idea is to develop a pool of lawyers who are willing to engage in limited travel in order to assist smaller counties that lacked attorneys who are qualified to handle capital cases. Thus, while each county would try to develop a pool of local

la The process of (Rule -making implementation) is a supervisory function of the Supreme Court and the Court of Appeals. There are adequate provisions for public comment on any proposed rule or standard. Set, Pa.RJA. No. 103; 28 U.S.C. §2071 et sect.

PA319 Dr-301 Pcnaity Rcix)rt July ;59D ragc. 24 attorneys who met Statewide qualification criteria, there would also exist a pool of attorneys who are willing to travel outside of their county. Any attorney who qualified to handle capital cases within his/her home county would also have the option to have his/her name included on the Statewide roster, i.e., an attorney could not opt to be included on the Statewide list even though qualified to handle capital cases. However, if an attorney opted to have his/her name on the Statewide list, it would wean that the attorney would be willing to do one case per year in a nearby county. Certification, according to the appropriate standards, can be for trial, appellate, PCRA, and federal collateral attack proceedings.

It is presumed that in most cases both lead and associate counsel will be appointed.

In very small counties, where capital cases are infrequent, there may be few or no qualified attorneys. Where no local, qualified attorneys are available, necessary appointments should be

in conjunction with an appointment of local counsel. Local counsel will gain valuable associate

counsel experience, and qualified lead counsel from another county can benefit from the local

attorney's knowledge.

3.3 Certification Board

A Board of Certification will review the qualifications of attorneys and administer pools

of qualified attorneys. The Board will consider applications from attorneys, with a regional

breakdown similar to that of the federal district court divisions, forming Western, Middle, and

Eastern districts. The Board will certify attorneys in strict adherence to the standards, but

where appropriate the Board may recognize certain kinds of experience which would be treated

as equivalent to particular standards. The Board periodically may review the continuing

qualifications and performance of pool attorneys and revise the list as necessary.

PA320 Death Pcnalty Rcinort July i990 Pagc Z5

The Board would be comprised of members chosen as follows:

(a) A federal defender chosen by the Chief Judge of the United States Court of Appeals;

(b) A county defender chosen by the Chief Justice of the Supreme Court of Pennsylvania;

(c) A member of the criminal defense bar chosen by the Supreme Court of Pennsylvania;

(d) A member of the bar selected by the President of the Pennsylvania Bar Association;

(e) A member of the criminal defense bar chosen by the President of the Pennsylvania Association of Criminal Defense Attorneys; and,

(0 The Director of the Resource Center, ex officio,

Thus, there would be six (6) Members of the Board, five voting members, with

staggered terms, and the Director. It is suggested that the terms be staggered over a three (3)

year period. Vacancies will be filled by the person(s) or agency which originally appointed the

member.

3.4 Compensation

A statewide compensation plan for the costs of state court litigation should be

mandated.'g The plan should permit the payment of preliminary expenses via interim

petitions for reimbursement. While most attorneys can await the anal payment of fees,

advancing expenses for lengthy litigation can be burdensome or impossible for small firms.

19 Compensation for litigation in the federal courts, whether in direct criminal representation or collateral attack, is governed by the Criminal Justice Act, 18 U.S.C. § 3006A, and 21 U.S.C. § 843(q).

PA321 Dcath i'crlaky Rc?on Juiy - Pagc

3.5 Proposed StateWide Gualilication Standards for Court -A ointed Cnunsel in Capital Case

3.5.1 Standards for Certification in Capital Homicide Trials

3.5.1.1 General Principle

The Board of Certification should seek attorneys from the criminal defense bar

who can demonstrate excellence in homicide litigation. In all capital homicide cases,

an attorney qualified as lead counsel must be appointed from the list of qualified

attorneys maintained by the Death Penalty Certification Board. It is presumed that

both lead and associate counsel will be appointed in most cases.

3.5.1.2 Qualifications for Lead Counsel

To be certified lead counsel, it is required that an attorney demonstrate that

he/she:

Has been admitted to the Bar of the Pennsylvania Supreme Court (or to the bar of the federal district court) or admitted to practice pro hac vice;

Is an active practitioner with at least five years' litigation (trial and/or appellate) experience and demonstrated expertise in the field of criminal law in this or any other jurisdiction;

Has prior experience as sole or lead counsel in no fewer than ten criminal jury trials of serious and complex cases which were tried to completion in this or any other jurisdiction;

Has been sole or lead counsel in the trial of at least one homicide case, tried to completion; or, has participated as associate counsel in at least two homicide trials tried to completion in this or any other jurisdiction;

Is familiar with the practice and procedure of the Pennsylvania Supreme Court, or the federal district court and the United States Court of Appeals for the Third Circuit;

Is familiar with, and experienced in the use of expert witnesses and scientific and medical evidence, including, but not limited to, psychiatric and pathological evidence;

Has attended and successfully completed within the last two years at least one training or educational program on criminal advocacy which

PA322 Death Pcnal;). Rcport Jufy t990 - Pa.gc 27

focused on the trial of cases in which the death penalty is sought and which includes training in federal habeas corpus jurisprudence. (This requirement may be waived if the attorney has demonstrated out- standing performance as lead counsel in two or more death penalty trials within the preceding two years.)

33.13 Qualifications for Associate Counsel

To be certified as associate counsel, it is required that an attorney demonstrate

that he/she:

Has been admitted to practice before the bar of the Pennsylvania Supreme Court {the federal district court) or has been admitted to practice pro hac vice;

Is an experienced and active practitioner with at least three years' litigation (trial and/or appellate) c:cperience and demonstrated expertise in the field of criminal Iaw in this or any other jurisdiction;

Has prior experience as sole or lead counsel or co-counsel in at least five criminal jury trials of serious and complex cases which were tried to completion in this or any other jurisdiction;

(d) Has been sole counsel, lead counsel, or co-conncel in a homicide trial in this or any other jurisdiction, which resulted in a verdict; or, has attended and successfully completed within the last two years at least one [mining or education program on criminal advocacy which focused on the trial of cases in which the death penalty is sought.

33.2 standards for Certification --Death Penalty Appellate Counsel

3-5.2.1. General Principles

The Board of Certification should seek attorneys from all sectors of the bar who can demonstrate excellence in appellate advocacy to represent appellants under sentence of death.

The court ordinarily should appoint two attorneys. To be appointed associate counsel, an attorney should be qualified to handle state PCRA or federal motions to vacate sentence, (28 U.S.C§ 2255) cases where death penalty is not authorized.

PA323 Death Penalty Report July 19'7'0 - Pug 23

3-5.2.2 Qualifications for Counsel Certified to Represent At.-TelIants Under Sentence of Death

An attorney may be certified to represent an appellant under sentence of death

only if that attorney:

(a) Has been admitted to the bar of the Supreme Court of Pennsylvania (United States Court of Appeals for the Third Circuit) or has been admitted to practice before that Court pro hac vice;

(b) Has had primary responsibility for at !east five briefs submitted to any appellate court;

(c) Has presented oral argument to an appellate court on at least three occasions involving criminal cases;

(d) Submits to the Board of Certification at least one appellate brief that was written primarily by himself/herself and demonstrates to the Board excellence in written legal advocacy;

(e) Is familiar with the practice and procedure of the Pennsylvania Supreme Court (United States Court of Appeals for the Third Circuit);

(I) Demonstrates, by training or experience, knowledge of principles of criminal and constitutional law as they apply to death penalty cases, as well as familiarity with state PCRA and/or federal habeas corpus jurisprudence.

3.53 Standards for Certification Post -Conviction Relief° Counsel--PCRA: 2254; E. 2255

3.5.3.1 General Principles

(a) The Screening Committee should seek attorneys from all segments of the bar who can demonstrate excellence in litigation to represent post -conviction petitioners under sentence of death.

(b) The court ordinarily should appoint two attorneys to represent the petitioner.

(c) The Board of Certification shall certify attorneys eligible to be placed on death penalty PCRA panels, or death penalty "habeas. corpus" panels, 28 U.S.C. §§ 2254, 22.55, of the United States District Courts of Pennsylvania. The Board will ascertain who among these attorneys arc willing to accept appointments in death penalty post -conviction

2°The term "post -conviction," except where it explicitly applies to a specific state or federal statute, is understood to encompass both state and federal avenues of post -conviction relief.

PA324 Death Ptnaity Rcport July 1990 Pagc

petitions, subsequent appeals, and federal "habeas corpus" petitions, U.S.C.§§ 2254, 2255.

(d) There is a presumption in favor of continuity of representation of counsel in the post -conviction process. PCRA counsel will ordinarily continue representation in subsequent federal proceedings, unless counsel or the petitioner objects. When a state petitioner, whose federal habeas corpus petition, 28 US.C.§2254, has been dismissed for failure to exhaust state court remedies, was represented by counsel appointed under the Criminal Justice Act, that petitioner should be represented by the appointed attorney in subsequent state proceedings, unless either the petitioner or the attorney objects.

33.3.2 Qualifications for Counsel Appointed to Represent Prisoners Under Sentence of Death in Post -Conviction Petitions

An attorney may be appointed to represent a post -conviction petitioner under sentence

of death only if that attorney:

(a) Has been admitted to the bar of the Supreme Court of Pennsylvania (the federal district court) or has been admitted to practice pro hac vice;

(b) is an active practitioner with at least five years' litigation (trial and/or appellate) experience in this or any other jurisdiction;

(c) Has experience as sole or lead counsel in no fewer than ten trials or other hearings before a judge or other judicial officer where contested factual issues were actually decided;.

(e) Submits to the Screening Committee at least one sample of legal writing for which he/she was primarily respousible. This writing must advocate the position of a party in an adversary proceeding and must demonstrate excellence in written legal advocacy;

(f) Is familiar with the practice and procedure of the Pennsylvania Supreme Court, and with PCRA, and/or federal habeas corpus, 28 LI.S.C.§§2254, 2255, jurisprudence;

(g) Has taken at least one training or educational program, within the past two years, which focused on state and federal post -conviction litigation- in death penalty cases. (This requirement may be waived if the attorney demonstrates to the Screening Committee knowledge of the principles of Pennsylvania and federal death penalty post - conviction litigation.)

PA325 Death Penalty Report July 1990 Page 30

3.5.4 Experience Exception To Standards

if any applicant fails to meet any of the above specific standards, the Board of

Cerification, after examining the applicant's qualifications and conducting a personal interview with nthe applicant, may rate the applicant to be qualified if the applicant's experience, knowledge and training are clearly equivalent to the standards for the category in which applicant seeks qualification?'

3.55 State Compensation Rates for Court -Appointed Counsel

3.5.5.1 The appointment of certified counsel in homicide cases in which the State

seeks the death penalty shall be made in accordance with these guidelines and

applicable Rules.

3.5.5.2 The court ordinarily will appoint lead and associate counsel in cases in which

the State seeks the death penalty.

3.5.53 (a) Assigned counsel may make a written request to obtain investigative,

expert or other services necessary to an adequate defense. Upon

finding that such services are necessary, the court shall authorize

counsel to obtain such services on behalf of a defendant.

(b) In order to expedite reimbursement to counsel for services rendered

by investigators or other experts authorized by the court at the

conclusion of such expert services rendered on behalf of the

211t is likely that appropriate waivers will be more necessary during the implementation phase of the standards. Given aggressive training and support by the statewide bar, more attorneys gradually will meet certification standards.

PA326 Death Pcnafty Report July 1 92 a Page 31

defendant, counsel may submit a petition and order for

reimbursement to counsel of such expert fees. Said petition and

order shall be submitted to either the trial judge, if there is a trial, or

to the judge presiding over the disposition of the matter and may be

submitted at any stage of the proceedings. The petition and order for

reimbursement must contain all information and exhibits relevant to

the reimbursement of expenses as may be prescribed by rule. Upon

submission by counsel of the petition and order for reimbursement,

the appropriate judge will review the petition and authorize payment

,to counsel of such expert fees as are considered reasonable and

necessary. The reviewing judge will then forward the petition and

order for reimbursement to the proper payment authority for prompt

payment.

3.5.5.4 Upon the conclusion of counsel's representation, or any segment thereof, the

judge sitting at the trial of the case, if there is a trial, or to the judge presiding

over the disposition of the matter shall, after the filing of the claim and sworn

statement, allow such counsel all reasonable personal and incidental expenses,

and compensation for services rendered.

3.5.5.5 Conn,.el in state proceedings shall be compensated for services rendered at a

rate not exceeding seventy five ($75.00) per hour for time reasonably expended

in court, and fifty dollars ($50,.00)22 per hour for time reasonably expended

out of court. When two counsel have been assigned, their claims for

compensation and reimbursement shall be stated separately.

22 The recommended rates reflect the budget constraints facing the local counties. The higher rates in the federal courts, a rate of S12.5/hour for in -court and out -of -court time reflects the current rates approved by federal courts throughout the country.

PA327 Dtath Pcr.alry Report July 1990 Page 32

355.6 Counsel so appointed must file with the judge an affidavit that he has not,

directly or indirectly, received, nor entered into a contract to receive, any

compensation for such services from any source other than herein provided,

or any other affidavit required by law.

PA328 .1,1y rags 33 1:),_,ath Rcpor: IC:.)-

4.0 TRACKING

There exists a aced within Pennsylvania to identify capital cases and update the status of such cases as they move through the state and federal court systems. Presently, there is no single source to collect and process information on the status of capital cases within

Pennsylvania.

The dual function of this proposed tracking system is to identify the existence of all state and federal capital cases in Pennsylvania at the earliest possible time in order to facilitate the appointment of qualified counsel if necessary to the case, and to maintain the status of all capital 02 ses at all levels of the state and federal court systems in Pennsylvania. A computer based system needs to be designed which would consist of the collection and processing of factual information necessary to support these two functions. Cases will be tracked through the state and federal trial and appellate court systems and will include dispositions by the Supreme

Court of the United States, if applicable. Collateral reviews, regardless of the number in both

the state and federal systems, and all appeals therefrom, will be included. The system must

necessarily allow for cross-indexing, given the fact that a case takes on a different number and

caption depending on where it is initiated. The information on the system should be available

to the bench, bar and public.

The information to be included in the case tracking system would be similar to that

appearing in a docket and include, but not be limited to, the following: caption of the case, the

county of origin, the case number, defense counsel's name, address and telephone number, trial

date, or argument or hearing date whichever is applicable, disposition by the fact finder and/or

court, the date for filing of briefs or motions such as post -trial motions and the Tiling of

appellate briefs, when the record is 'lodged with the appellate court, whether a warrant of

execution has issued and date of execution, and whether a stay has been granted. This outline

of information is only illustrative; the actual details of the system ultimately will be determined

PA329 Dca:h Penalty Report July 1979 Page 34 during the desicn phase.

Research has indicated that other states, where there exists no unified defender's organization which has responsibility for defending capital cases, employ methods such as reviewing newspaper clippings to become aware of the riling of a capital case, as well as by word of mouth. These methods are viewed as insubstantial and haphazard at best. Thus, to carry out the purposes of this tracking system, it is critical to become aware of the existence of capital cases at the earliest opportunity. Various options were explored but for purposes of tracking state cases, it is recommended that Rule 352 of the Pennsylvania Rules of Criminal

Procedure be amended as appropriate and utilized in carrying out this function. This Rule provides that the Commonwealth, i c., the District Attorney, must notify the defendant in writing of any aegravating circumstances which it intends to submit at the sentencing hearing, at or before the time of arraignment unless the Commonwealth becomes aware of the existence of an aggravating circumstance subsequent thereto, or that the time for notice is extended by the court for cause shown.23 Utilization of the Rule seems to be the most expeditious means to accomplish the objective and would represent a sound mechanism for reporting. The Rule should be amended to require that notice of a capital case be provided to the Resource Center at the same time. It is understood that amending the Rule is within the discretion of the

Supreme Court of Pennsylvania. Initiatives should be undertaken to submit a rule change to

the Court for its consideration.

23 Rule 352, Pa.R.Crim.P. reads as follows:

Rule 352. Notice of Aggravating Circumstances

The Commonwealth shall notify the defendant in writing of any aggravating circumstances which the Commonwealth intends to submit at the sentencing hearing. Notice shall be given at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for notice is extended by the court for cause shown.

PA330 Dca:h ?'cr,alty Rcport July 17)D Page iS

Once the case has been reported to the Resource Center, it is incumbent upon that entiry to pursue the collection of data regarding the status of the case. The Resource Center must take the initiative by contacting defense counsel, or whatever other sources necessary to ensure that the information on the case is current and complete. This applies to all levels within the state and federal court systems.

With respect to the notification of the existence of federal original jurisdiction capital cases and habeas corpus capital cases, reporting procedures be implemented regarding original capital cases complementary to those already in place in the Third Circuit Court of Appeals for habeas corpus capital cases. Rule 29 of the Third Circuit Rules and Procedures, and Chapter

L5 of the Internal Operating Procedures of the U.S. Court of Appeals for the Third Circuit govern the procedure for capital habeas corpus cases as well as the administration of those cases. Rule 29 requires the filing in the U.S. District Court of a Certificate indicating that the case is capital in nature, which in turn is transmitted to the Third Circuit. Thy Third Circuit

Judicial Council or local district courts should develop rules requiring the filing, by the United

States Attorney, of a certificate of death penalty case at the time of arraigruent. See

Fed.R.Crirn.Pro. Rule 10; 21 U.S.C.§848(h). On the Circuit level, a designee will monitor all federal capital cases and transmit such information to the Resource Center. Thereafter, the

Resource Center should exercise initiative to complete necessary information and maintain case status.

As to the design of the computer program, personnel within the Administrative Office of Pennsylvania Courts and the U.S. Court of Appeals are available to develop a program to meet the requirements recommended herein. The Courts' computer specialists have indicated that the system can be developed to run on a personal computer at a minimum cost.

PA331 Dcath F'

Members of the Task Force will continue to design this function of the Resource

Center and are prepared to implement the tracking function as quickly as possible.

PA332 Death rcnzity Rcz-x_r-rt Juiy 199) - Paga 37

5.0 FUTURE INITIATIVES

Possible alternatives for securing adequate and continuing funding for the Resource

Center and its related activities were considered. Various sources of funding, such as foundation grants and bar association donations, were dismissed as unreliable, because the experience nationwide has been that such sources often provide only temporary assistance. A permanent, secure source of funding is essential to the 'viability of the Center, and is a precondition to continuing federal funding. The most appropriate source of funding is a combination of the state and federal government. Federal funding is available, but contingent on comparable state funding.24 Accordingly, the Subcommittee was instructed to explore appropriate sources of state funding, and it makes the following recommendations.

Funding for the Resource Center and related activities should be sought in the form of a line item in the budget of the Judiciary of Pennsylvania. The proposed funding should represent 50% of the estimated budget for start-up and first year expenses (approximately

S300,000), with the federal judiciary authorizing the remP.iring, fifty percent. Future budgets should be funded in a similar way, consistent with the needs of the Center.

Upon final issuance of this Report of the Death Penalty Task Force, it should be presented to the Supreme Court of Pennsylvania for approval and subsequent inclusion in the budget of the Pennsylvania Judiciary. (Submission to Pennsylvania legislature and to the

Governor, then, will follow the traditional means of budget preparation, adoption, and final appropriation.) The Report should also be submitted to the Judicial Council of the Third

Circuit and the Judicial Conference of the United States for approval and authorized funding.

24 The Resource Center Plan must be approved by the Judicial Council of the Third Circuit, the Defender Services Committee of the Judicial Conference, and the Judicial Conference of the 'U.S. Funding will be administered by the Defender Services Division of the Administrative Office.

PA333 Dcath Ptnalry Rc art July 1990 - Pagc 38

The target state budget cycle is FY'91-`92 (July 1, 1991-June 30, 1992). That target will require consideration and approval by the Supreme Court prior to its budget submission for FY'91-'92. Budget preparation typically begins in the fall preceding the new fiscal year. A continuing committee should be appointed to pursue all steps necessary to the final

implementation of the Resource Center. Members of the Task Force, the Chief Justice, the

Chief Judge, and other interested parties should stand ready to testify about the need for the

Center or to explicate aspects of the Report during the implementation period.

PA334